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The Supreme Court last week accepted an already-famous case from California, to decide whether “a public school district policy that requires teachers to lead willing students in reciting the Pledge of Allegiance, which includes the words ‘under God,’ violates the establishment clause of the First Amendment, as applicable through the 14th Amendment.” The parties in Elk Grove Unified School District v. Newdow have not yet filed briefs on the merits. But to help explain the case, below are excerpts of the certiorari briefs and other filings. Some citations have been edited or removed. Plaintiff Michael Newdow prevailed in the 9th Circuit, but nonetheless filed his own Petition for Certiorari, asking the Court to strike down the Pledge not only in public schools, but in general. Though the Court declined his request, Newdow (who represents himself) lays out in his brief his reasons for initiating the suit: Newdow is a citizen of the United States, entitled to all the protections of the Constitution. He is also an atheist, who adamantly denies the existence of any supreme being, and who finds the notion that his government espouses the contrary religious view at all — much less as part of its only Pledge of Allegiance — to be deeply offensive and injurious. . . . Newdow set out numerous grounds for standing. Chief among these was his personal right to join his fellow citizens in pledging allegiance to his country’s flag — and all it stands for — without having to confront offensive religious dogma. With a (simply wonderful) daughter in elementary school, Newdow attends meetings of the local school board. Because those meetings invariably begin with a recitation of the now-religious Pledge, Newdow named the school board and its superintendent as defendants, contending that their use of the Pledge constituted a governmental endorsement of a specific religious belief — i.e., the belief that there exists a god — and thus turned him into a “political outsider.” . . . As Justice [Hugo] Black noted, the Establishment Clause was instituted because the given religious persuasion of the various colonies “depended largely upon what group happened to be politically strong enough to legislate in favor of its own beliefs.” Torcaso v. Watkins (1961). As this case reveals all too well, the Clause is still needed for this exact same reason. . . . The aggravation, disgust, and outrage of being turned into “political outsiders” and second-class citizens — generally unrecognized by children — is extensive to the disenfranchised adult citizens who find themselves despised and ridiculed due solely to their religious beliefs. Government, of course, has no duty to overcome private biases. But it may no more strengthen, encourage or even condone antipathy based on matters of conscience than it may do these things based on matters of race. . . . The Court of Appeals found that Newdow has standing as a parent, and therefore limited its standing analysis to that one realm. Newdow, however, has always believed that he primarily has standing in his own right. In fact — without minimizing the personal harm that occurs when one’s child is inculcated with religious dogma while attending the public schools — the harm to an adult who is turned into “second-class” status on the basis of his religious persuasion is at least as severe. The Elk Grove Unified School District (where Newdow’s daughter is a student) successfully asked the Supreme Court to review the 9th Circuit’s decision that the Pledge was unconstitutional in public schools: Pursuant to . . . policy, elementary school teachers begin each school day by leading their students in reciting the Pledge in conformity with the California Education Code. In pertinent part, Elk Grove Unified School District’s (“EGUSD”) policy states that each “class [shall] recite the Pledge of Allegiance to the Flag once a day.” . . . [B]y concluding that the EGUSD’s policy of requiring elementary school teachers to lead willing students in the recitation of the Pledge is unconstitutional, the majority opinion of the Ninth Circuit in this case is in direct conflict with the Seventh Circuit’s decision in Sherman v. Community Consolidated School District 21 (1993). In addition to conflicting with the Sherman opinion, the majority of the panel of the Ninth Circuit also runs afoul of this Court’s affirmations regarding the constitutionality of the Pledge. . . . In West Virginia State Board of Education v. Barnette (1943), this Court held that a West Virginia regulation that required schoolchildren in the state to recite the Pledge or be considered insubordinate was unconstitutional. The Plaintiffs in Barnette were Jehovah’s Witnesses who refused to salute the flag in accordance with their religious beliefs. In deciding the case, this Court noted that compulsory recitation of the Pledge “requires the individual to communicate by word and sign his acceptance of the political ideas it thus bespeaks.” This Court also noted that “[F]ree public education, if faithful to the idea of secular instruction and political neutrality, will not be partisan or enemy of any class, creed, party, or faction.” . . . The Legislative Reference Service [of the Library of Congress] determined that the phrase “under God” was a modifier to the phrase “one Nation” because the addition was intended to affirm that the United States was founded on a fundamental belief in God. This analysis underscores the idea that the addition of the phrase “under God” to the Pledge was done for a secular purpose — the affirmation of the concept that the United States was founded on a fundamental belief in God. The federal officials sued by Newdow had previously been dismissed from the suit, but the Supreme Court ultimately invited U.S. Solicitor General Theodore Olson to file a brief on the merits for the United States. Olson filed a separate petition for certiorari: In 1942, as part of an overall effort to “codify and emphasize existing rules and customs pertaining to the display and use of the flag of the United States of America,” Congress enacted a Pledge of Allegiance to the United States. As originally enacted, the Pledge of Allegiance read: “I pledge allegiance to the flag of the United States of America and to the Republic for which it stands, one Nation indivisible, with liberty and justice for all.” Twelve years later [in 1954], Congress amended the Pledge of Allegiance by adding the words “under God” after the word “Nation.” . . . In amending the Pledge, the Committee Reports noted that, “[f]rom the time of our earliest history our peoples and our institutions have reflected the traditional concept that our Nation was founded on a fundamental belief in God.” Both [the House Report and a similar Senate Report] traced the numerous references to God in historical documents central to the founding and preservation of the United States, from the Mayflower Compact to the Declaration of Independence to President Lincoln’s Gettysburg Address, the latter having employed the same reference to a “Nation[] under God.” The Reports further explained that the amendment would highlight a foundational difference between the United States and Communist nations: . . . As amended, the Pledge would thus textually reject the “communis[t]” philosophy “ with its attendant subservience of the individual.” . . . Two decisions of this Court have said without qualification that the Pledge of Allegiance is constitutional. Numerous other opinions, joined in by at least twelve Justices of this Court, have likewise expressly addressed and affirmed the constitutionality of the Pledge of Allegiance notwithstanding its reference to God. No Justice has expressed the view that the Pledge violates the Establishment Clause. . . . In sum, this Court has repeatedly refused to “press the concept of separation of Church and State to . . . extremes” and to condemn as unconstitutional the “references to the Almighty that run through our laws, our public rituals, [and] our ceremonies.” Zorach v. Clauson (1952) . . . The opinions of individual Justices have cemented as common ground the proposition that the Pledge of Allegiance, and similar acknowledgments of the Nation’s religious heritage and character, are constitutionally permissible. . . . The court of appeals’ failure to recognize the analytical import of this Court’s past decisions and statements underlies its erroneous conclusion that recitation of the Pledge of Allegiance in schools violates the Establishment Clause. . . . [I]n concluding that the Pledge results in unconstitutional coercion, the court of appeals failed to come to grips with this Court’s repeated recognition that the Establishment Clause permits such historic, ubiquitous, and ceremonial acknowledgments of our Nation’s religious character and heritage. . . . [A]s Judge [Diarmuid] O’Scannlain explained in his dissent from the denial of rehearing en banc, the court of appeals’ decision proceeds from the faulty premise that the Pledge’s acknowledgment of the Nation’s religious heritage is the functional equivalent of prayer or a religious act like Bible reading. The decisions of this Court and individual Justices outlined above repeatedly admonish that not every reference to God amounts to impermissible government-endorsed religious exercise, and expressly refer to the Pledge and similar ceremonial references in contradistinction to formal religious exercises like prayer and Bible reading. The Pledge is no more of a coercive religious exercise than the requirement at the opening of federal courts that individuals stand while a court official announces “God save the United States and this honorable Court.” [T]he court of appeals erred in analyzing the phrase “under God” in isolation. In the court’s view, pledging allegiance to the phrase “under God” compelled an endorsement of monotheism in the same manner as phrases like “under Jesus,” “under Vishnu,” or “under Zeus.” But Congress did not enact a pledge consisting just of the words “under God,” and the school district does not lead students in reciting only the phrase “under God.” . . . It is untenable that a national Pledge of Allegiance to a national flag would have a different content depending on the judicial circuit in which it is uttered. Absent this Court’s review, 9.6 million students in nine States will recite an abridged version of the Pledge, while the nearly 37 million students in the rest of the Country will recite the Pledge that Congress enacted. . . . The Pledge cannot serve its purpose of unifying and commonly celebrating the national identity unless it is one Pledge with one content for all citizens at all points in their lives. . . . Public schools routinely instruct students about evolution, war, and other matters with which some parents may disagree on religious, political, or moral grounds. What the Constitution protects, in those circumstances, is the parents’ right to instill their own views in their children and to place them in a private school that is more consonant with their beliefs. Another question in the case, which the Supreme Court stated it will review, is whether Newdow has standing to challenge his daughter’s exposure to the Pledge, since at the time he filed the case, he did not have legal custody of her. Newdow wrote to the Court in September to contend that he had re-established “joint legal custody” of his child. He adds: Were the Court to rule that dismissal is in order because I did not have standing between February 6, 2002 and September 10, 2003, I would simply refile the case, which would require the lower courts to simply duplicate their efforts. The child’s mother, who opposes Newdow’s efforts to find the Pledge unconstitutional, is represented by former Solicitor General Kenneth Starr. Responding to Newdow’s letter, Starr wrote to the Court: The California court’s decision does not, however, grant Dr. Newdow any greater right to use his daughter in his efforts to challenge the Pledge. The court expressly stated that it was not awarding the parties joint legal custody, as the term is defined in the California code. . . . Moreover, the court made clear that, regardless of what “technical title” it might use to describe the custody arrangement, Ms. [Sandra] Banning [the girl's mother] has the right to “make[] the final decisions” if she and Dr. Newdow are not able to reach mutual agreement on issues concerning the child’s upbringing. . . . The court held that Ms. Banning retains the right to make ultimate decisions concerning the child’s health, education, and welfare because “[i]t’s really clear” that Dr. Newdow is “not able to co-parent now.” . . . In fact, the court specifically noted that Dr. Newdow’s decision to involve the child in his lawsuit without Ms. Banning’s consent was an indication of his inability to co-parent. In a final twist, the Court noted that Justice Antonin Scalia had recused himself. Though the Court did not state why, he presumably did so in response to a “Suggestion for Recusal of Justice Scalia” from Newdow, stating in part: According to reliable news accounts, Justice Scalia was “the main speaker at an event for Religious Freedom Day” held on January 12, 2003. There, Justice Scalia apparently indicated that the Ninth Circuit decision in the instant case was based on a flawed reading of the Establishment Clause. Yet it is highly unlikely that the Justice had ever read any of the briefs in the case, and — although his knowledge base is prodigious — it is doubtful that Justice Scalia has been fully apprised of all the facts related to Congress’s Act of 1954. Under such circumstances — where he prematurely indicated that a lower court’s decision was wrong in a case he would likely hear — one might certainly question his impartiality.

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