The US Supreme Court agreed on Tuesday to take up one of the most emotional legal questions to arise in many years: Whether the Pledge of Allegiance, as recited by children at the start of the school day for half a century, should be banned from the classroom because it violates the constitutional separation of church and state.
To no one's surprise, the court said it would hear the case of Elk Grove Unified School District v. Newdow, 02-1624, which focuses on the all-important phrase "one nation under God."
The words were inserted into the pledge in 1954 as the US was locked in the Cold War with the Soviet Union and the phrase "Godless communism" was a staple of American political life. The original pledge, minus the reference to God, was adopted in 1942.
The justices will hear the school district's appeal next year, probably in February or March. In the meantime, schoolchildren can continue to say the pledge with "under God" in it because the 9th US Circuit Court of Appeals, which declared the pledge unconstitutional, stayed its own ruling pending action by the Supreme Court.
The court had widely been expected to take the case. The ruling by the 9th Circuit, which covers nine Western states, is at odds with a 1992 decision by the Court of Appeals for the 7th Circuit, which covers much of the Midwest. Conflicts between the circuits often prompt the Supreme Court to decide an issue.
Beyond the conflict between the circuits, the issue is so emotion-laden and affects so many children and their parents that some court-watchers thought the justices had to look at it.
The issue has already been felt inside the Supreme Court itself. Justice Antonin Scalia announced that he would not take part in the case, apparently because he spoke out against the 9th Circuit ruling at a religious event last January.
Scalia said at the time that issues like the pledge should be decided by lawmakers, not judges. Should the remaining eight justices split evenly in their deliberations, the 9th Circuit's ruling would stand and would apply to the pledge recited by some 10 million children in California, Alaska, Arizona, Hawaii, Idaho, Montana, Nevada, Oregon and Washington State. But the 4-to-4 deadlock would not affect the other circuit courts, or the millions of children who live in their states.
However, if a majority of the justices say that the 9th Circuit was right in its ruling, the pledge would have to be amended in school settings from coast to coast, with the references to God deleted.
The current case began with a lawsuit filed in US District Court in Sacramento, California, by an atheist, Michael Newdow, whose daughter attended elementary school in the Elk Grove Unified School District, near the state capital.
Under a 1943 ruling by the US Supreme Court children cannot be forced to recite the pledge. But Newdow, an emergency-room physician who also holds a law degree and acted as his own lawyer, argued that his daughter's First Amendment rights were violated because she had been forced to "watch and listen as her state-employed teacher in her state-run school leads her classmates in a ritual proclaiming that there is a God, and that ours is `one nation under God.'"
On June 26 last year, a three-judge panel of the 9th Circuit sided with Newdow, ruling 2 to 1 that the pledge, when it contains "under God," does cross the line between church and state.
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