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The Supreme Court last week set the stage for a major First Amendment battle over the words “under God” in the Pledge of Allegiance. Three years ago, Sacramento, Calif., atheist Michael Newdow’s pro se campaign to strike the words from the Pledge seemed merely quixotic. Now, the case is on the agenda for the nation’s highest court, likely to be argued early next year amid an intense debate over issues of religion and patriotism in a time of war. Many Court experts had predicted that the Court would summarily reverse the ruling by the U.S. Court of Appeals for the 9th Circuit last year that sided with Newdow and found that “under God” in the Pledge recited by public school students violated the First Amendment’s establishment clause. Instead, the Court agreed on Oct. 14 to give full review of the case Elk Grove Unified School District v. Newdow, No. 02-1624, reframing the case in a way that worries Pledge supporters, asking whether the challenged school policy is constitutional in that it “requires teachers to lead willing students in reciting the Pledge.” Justice Antonin Scalia added an extra dose of unpredictability by recusing from the case, depriving Pledge supporters of a near-certain vote and making it easier for Newdow to win; he now needs only four votes, not five, to prevail. Scalia was apparently responding to Newdow’s Sept. 9 “suggestion for recusal” based on a speech Scalia gave in January in which he suggested that the way for opponents to remove the words “under God” from the Pledge is to persuade Congress, which first inserted the phrase in 1954. “It’s a real challenge now. There are a whole lot of ways it could turn out,” said Jay Sekulow, director of the American Center for Law and Justice, which wants the Court to retain the current Pledge. “We’re surprised by Scalia’s back-out, and anytime the Court uses the word ‘required’ in a case like this, that makes you a little nervous.” The Court left itself a possible escape hatch, indicating last week that in addition to the First Amendment issue, it wanted to hear arguments on whether Newdow has standing to bring the suit on behalf of his 9-year-old daughter. If the Court finds Newdow has no standing, the justices could conceivably avoid the contentious Pledge issue. The standing issue arose because from February 2002 until last month, Newdow did not have legal custody over his daughter, and the girl’s mother, Sandra Banning, engaged Kenneth Starr of Kirkland & Ellis to contest Newdow’s standing on the Pledge issue and to tell the Court that she had no objection to her daughter saying the Pledge. In a California Superior Court proceeding last month, Newdow regained partial legal custody, though Banning’s lawyers still contest his standing. “It would be a shame to see this opportunity to straighten out the establishment clause go by the boards because of the standing issue or Scalia’s recusal,” says Kevin Hasson of the Becket Fund for Religious Liberty, which filed a brief against Newdow for the Knights of Columbus, a Roman Catholic organization. “Scalia’s recusal shifts the center of the Court to the left.” Convincing the justices to overturn the 9th Circuit will become a “much harder sell.” In another twist to the case, Newdow indicated that he will continue with his plan to argue it himself, in spite of concerns expressed by First Amendment advocates who are his natural allies. When asked last week whether he still plans to argue the case himself, Newdow replied, “Of course. And I plan to win pro se, as well.” Newdow, who has been a licensed California lawyer only since July 2002, says he will file a motion to argue pro hac vice — which is rarely denied. Such a motion is needed for lawyers who have been licensed for less than three years. Kenneth Geller of Mayer, Brown, Rowe & Maw, an expert on Court procedure, says the justices are likely to allow Newdow to argue. “He’s a lawyer, and he’s handled this case up until now. He’s not yet eligible to become a member of the Supreme Court Bar, so granting a motion pro hac vice makes sense.” In past interviews, Newdow has indicated his eagerness to expose what he calls the “egregious” family law system in California that deprived him of custody. The Court’s inclusion of the standing issue gives Newdow an opening to bring at least some aspects of that issue to the high court. Barry Lynn of Americans United for Separation of Church and State, who supports Newdow, says he has not tried to persuade Newdow to turn over the case to another advocate. “He certainly has been successful so far. But there are other, more seasoned advocates who would make a compelling case and know the Supreme Court and its procedures more than he does.” Newdow first filed suit in March 2000 against the United States and Congress, as well as school officials. The suit was dismissed. But on appeal, a 9th Circuit panel in June 2002 ruled for Newdow, though it dismissed the government and Congress as parties. The panel found that the Pledge, even if students are not required to recite it, has a “coercive effect.” Reviewing the history of the law that placed the words in the Pledge, the panel also found that it was intended to advance religion and endorsed the existence of a “monotheistic God.” After a national uproar, the panel in February amended its ruling to confine it to the school context — not the wording of the Pledge in general. The school district, Newdow, and the Bush administration all appealed the decision, but the Court granted review in only the school district case, rejecting the others. It did, however, invite the solicitor general to give his views on the issue, making it likely that the Bush administration will also participate in oral arguments. Though several justices in dicta over recent years have appeared to endorse the words “under God” in the Pledge, the school setting might make it a closer call because of peer pressure, the impressionability of students, and the fact that teachers — who might otherwise object — are required to lead the recitation of the Pledge. “Students are effectively forced to be part of a religious observance and they are expected to stay while it is going on,” says Lynn. “Requiring a religious loyalty test for school children is simply wrong.” OTHER ACTION AT THE COURT Also on Oct. 14, the Supreme Court granted review in Ashcroft v. ACLU, No. 03-218, the sequel to an earlier case challenging the Child Online Protection Act, a 1998 federal law that seeks to restrict children’s access to pornography online. The 3rd Circuit struck it down on the basis that it used “community standards” to define what should be put off-limits to children. Such a standard is inappropriate for the Internet, the appeals court found. The Supreme Court last year sent the case back to the 3rd Circuit to clarify its reasoning. The appeals court struck down the law again — this time on the basis that it was too broadly worded and would restrict adult access. The Bush administration appealed, arguing that the ruling “leaves minors unprotected from the enormous amount of pornography on the World Wide Web.” The high court will hear the case early next year. “It’s a good sign for America’s children that the Court has decided to revisit the issue,” says Patrick Trueman, a lawyer with the Family Research Council. “There is no logical or legal reason not to hold pornography peddlers liable for providing minors with material they cannot legally possess.” The American Civil Liberties Union’s Steve Shapiro says it was not surprising the Court would grant review, but he is optimistic that the justices will apply precedents — notably the 1997 case Reno v. ACLU — to strike down the law. The Court on Oct. 14 declined to grant review in a separate closely watched First Amendment case: Walters v. Conant, No. 03-40, in which the Bush administration fought to save its rules restricting the advice physicians can give on medical marijuana. The policy was imposed after California voters approved a medical marijuana initiative in 1996. Under the initiative, people whose doctors recommended marijuana could not be prosecuted for possession. To thwart the measure, the Clinton administration threatened to revoke the licenses of doctors who made such recommendations. Physicians challenged the rule as a restriction on their free speech that harmed patients with AIDS, severe cancer, and other ailments that could be alleviated by marijuana. The 9th Circuit sided with the doctors, and the Bush administration appealed. Many expected the justices to grant review, but the Court denied it without comment. The action has the effect of nullifying the federal policy in the 9th Circuit’s jurisdiction, which includes six states in addition to California that have legalized medical marijuana — Alaska, Arizona, Hawaii, Nevada, Oregon, and Washington. Similar laws have passed in three other states not within the 9th Circuit: Colorado, Maine, and Maryland. “The Supreme Court’s action protects doctors and patients from government censorship of open and honest discussions in the exam room,” says Graham Boyd, director of the ACLU’s Drug Policy Litigation Project, which represented the physicians. “Patients deserve access to accurate information about all possible medicines from their doctors, including medical marijuana.”

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