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MavKikiNYC · 10-14-2003, 08:05 PM

Two interesting side-issues to this case, bolded at bottom.

Justices Take Case on Pledge of Allegiance's Reference to God
By LINDA GREENHOUSE

Published: October 14, 2003

WASHINGTON, Oct. 14 — The Supreme Court added the Pledge of Allegiance to the docket for its new term on Tuesday, agreeing to consider whether public schools violate the Constitution by requiring teachers to lead their classes in pledging allegiance to the flag of "one Nation under God."

The justices, who begin their daily session with heads bowed as the marshal intones "God save the United States and this honorable court," accepted a case that like the affirmative-action and gay-rights cases of the last term places the court at the center of a heated public controversy.

The case is an appeal by a California school district of a decision that has been the subject of an intense national debate since the United States Court of Appeals for the Ninth Circuit, in San Francisco, issued it 16 months ago.

The Federal District Court in Sacramento initially dismissed a lawsuit brought by an atheist, Michael A. Newdow, who said he did not want his daughter exposed daily in her elementary school classroom to "a ritual proclaiming that there is a God." The Ninth Circuit overturned that decision, first ruling in June 2002 that the words "under God," added by federal statute in 1954, made the pledge itself unconstitutional.

In an amended opinion issued earlier this year, the court narrowed its ruling by confining it to the public school context, invalidating school policies that require teachers to lead willing students in the pledge. Ever since a Supreme Court decision on behalf of Jehovah's Witnesses in 1943, public schools may not compel students to recite the pledge. The Supreme Court indicated today that it would address only the recitation of the pledge in public schools, not its constitutionality as a general matter.

The Supreme Court's action today had several unusual elements that could have an impact on the eventual outcome. One was the decision by Justice Antonin Scalia not to participate in the case, an evident if unacknowledged response to a "suggestion for recusal of Justice Scalia" that Mr. Newdow sent to the court last month.

Mr. Newdow cited news reports of remarks the justice made at an event in Fredericksburg, Va., last January that was co-sponsored by the Knights of Columbus, the Catholic organization that a half-century ago played a leading role in persuading Congress to add "under God" to the pledge. According to the reports, Justice Scalia's speech at "Religious Freedom Day" pointed to the Ninth Circuit's decision in this case as an example of how courts were misinterpreting the Constitution to "exclude God from the public forums and from political life."

Mr. Newdow, who is a lawyer and medical doctor who has represented himself in the litigation, told the court that the remarks indicated that Justice Scalia was not just expressing general views on the Constitution but had formed a conclusion about the case itself, providing grounds for disqualification. The code of judicial conduct and a federal law that incorporates it both provide that judges "shall disqualify" themselves in cases where their "impartiality might reasonably be questioned."

While these provisions do not technically apply to Supreme Court justices, the justices adhere to them and recuse themselves from cases with which they have connections through stock holdings or personal associations. It is extremely unusual, however, for a recusal to be sought or granted on the basis of a public statement of opinion on the legal controversy before the court.

Another unusual aspect of the court's order today was the suggestion that at the end of the day, this case might not be suitable for decision. The court instructed the parties to discuss whether Mr. Newdow has standing to challenge the policy of his 9-year-old daughter's public school district, Elk Grove Unified School District, near Sacramento. The girl's mother, who has custody and to whom Mr. Newdow was never married, does not object to her daughter reciting the pledge.

10-14-2003, 08:05 PM	#8
MavKikiNYC Diamond Member Join Date: Feb 2002 Posts: 8,509	Supreme Court takes on fight over Pledge of Allegiance Two interesting side-issues to this case, bolded at bottom. Justices Take Case on Pledge of Allegiance's Reference to God By LINDA GREENHOUSE Published: October 14, 2003 WASHINGTON, Oct. 14 — The Supreme Court added the Pledge of Allegiance to the docket for its new term on Tuesday, agreeing to consider whether public schools violate the Constitution by requiring teachers to lead their classes in pledging allegiance to the flag of "one Nation under God." The justices, who begin their daily session with heads bowed as the marshal intones "God save the United States and this honorable court," accepted a case that like the affirmative-action and gay-rights cases of the last term places the court at the center of a heated public controversy. The case is an appeal by a California school district of a decision that has been the subject of an intense national debate since the United States Court of Appeals for the Ninth Circuit, in San Francisco, issued it 16 months ago. The Federal District Court in Sacramento initially dismissed a lawsuit brought by an atheist, Michael A. Newdow, who said he did not want his daughter exposed daily in her elementary school classroom to "a ritual proclaiming that there is a God." The Ninth Circuit overturned that decision, first ruling in June 2002 that the words "under God," added by federal statute in 1954, made the pledge itself unconstitutional. In an amended opinion issued earlier this year, the court narrowed its ruling by confining it to the public school context, invalidating school policies that require teachers to lead willing students in the pledge. Ever since a Supreme Court decision on behalf of Jehovah's Witnesses in 1943, public schools may not compel students to recite the pledge. The Supreme Court indicated today that it would address only the recitation of the pledge in public schools, not its constitutionality as a general matter. The Supreme Court's action today had several unusual elements that could have an impact on the eventual outcome. One was the decision by Justice Antonin Scalia not to participate in the case, an evident if unacknowledged response to a "suggestion for recusal of Justice Scalia" that Mr. Newdow sent to the court last month. Mr. Newdow cited news reports of remarks the justice made at an event in Fredericksburg, Va., last January that was co-sponsored by the Knights of Columbus, the Catholic organization that a half-century ago played a leading role in persuading Congress to add "under God" to the pledge. According to the reports, Justice Scalia's speech at "Religious Freedom Day" pointed to the Ninth Circuit's decision in this case as an example of how courts were misinterpreting the Constitution to "exclude God from the public forums and from political life." Mr. Newdow, who is a lawyer and medical doctor who has represented himself in the litigation, told the court that the remarks indicated that Justice Scalia was not just expressing general views on the Constitution but had formed a conclusion about the case itself, providing grounds for disqualification. The code of judicial conduct and a federal law that incorporates it both provide that judges "shall disqualify" themselves in cases where their "impartiality might reasonably be questioned." While these provisions do not technically apply to Supreme Court justices, the justices adhere to them and recuse themselves from cases with which they have connections through stock holdings or personal associations. It is extremely unusual, however, for a recusal to be sought or granted on the basis of a public statement of opinion on the legal controversy before the court. Another unusual aspect of the court's order today was the suggestion that at the end of the day, this case might not be suitable for decision. The court instructed the parties to discuss whether Mr. Newdow has standing to challenge the policy of his 9-year-old daughter's public school district, Elk Grove Unified School District, near Sacramento. The girl's mother, who has custody and to whom Mr. Newdow was never married, does not object to her daughter reciting the pledge.