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Pledge or prayer?

National | COURTS: The Supreme Court considers whether "under God" in the Pledge of Allegiance is merely a patriotic slogan

Issue: "Darwin's meltdown," April 3, 2004

AFTER THE U.S. SUPREME COURT IN October agreed to review the Pledge of Allegiance case involving Michael Newdow, his 9-year-old daughter, and a California school district, the paper storm began. At issue: whether the Elk Grove Unified School District's policy of beginning each day with the Pledge of Allegiance, which includes the phrase "under God," is unconstitutional. More than two dozen high-powered groups-including members of the U.S. Congress-showered the high court with legal briefs rooted in everything from patriotism to atheism.

Lesser known were 300 treatises on the topic penned by California high-school students. The school district at the eye of the controversy held an essay contest centered on the same question before the court: Does the practice of teacher-led recitation of the Pledge violate the Establishment Clause of the First Amendment?

Amanda Everett, a sophomore at Elk Grove High School, said yes: The insertion of the words "under God," she wrote, turned the patriotic oath into a public prayer. Valley High School junior Ai Nhi Hoang, who immigrated to the United States from Vietnam in 1995, said the Pledge doesn't "establish" religion but builds patriotic unity-a particularly valuable sentiment given the ongoing war on terror.

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Miss Everett and Miss Hoang had the winning essays, which provided each a trip to Washington to be present during the March 24 oral arguments in the case.

Only eight justices will consider those arguments. Conservative Justice Antonin Scalia, who during a speech criticized an appeals court ruling in Mr. Newdow's favor, recused himself. Court watchers say that sets the stage for a potential 4-4 high-court deadlock. A tie would affirm the 9th Circuit's ban on the Pledge's religious reference, and ban nearly 10 million schoolchildren in nine states from saying "under God" during the Pledge.

The entire suit turns on that phrase, and its offense to Mr. Newdow. An atheist and frequent freedom-from-religion litigator, he filed the case in 2000 using as plaintiff his daughter, who recites the Pledge each day in her Elk Grove elementary school. The girl's mother, Sandra Banning, is a Christian who has argued that her daughter does not object to saying "under God" in school each day. In 2002, the 9th Circuit Court of Appeals ruled in Mr. Newdow's favor, igniting a nationwide storm of protest that included statements of condemnation from Congress and President Bush. Meanwhile, liberal groups (the ACLU, People for the American Way, and others) cheered wildly.

But Elk Grove's lawyers weren't cheering. They petitioned the Supreme Court to overturn the 9th Circuit, which is the most reversed appeals court in the country. Soon, an unlikely klatch coalesced behind the Pledge, including the traditionally liberal National Education Association and conservative groups, some of which equated "under God" to a national birthright, even though the Pledge, written in 1892 by a Christian minister with socialist leanings, didn't include the words until Congress added them in 1954.

A constellation of legal views surrounds the case. One group of Christian and Jewish clergy filed a brief arguing that the Pledge requires nonreligious children to utter "under God," thus forcing them "to take the name of the Lord in vain." The Christian Legal Society, on the other hand, said the phrase reflects a distinctly and properly religious view of government, since "inalienable rights" come from God, not government.

The government itself seemed to have two views in the case. In 2002, the White House sent out a letter saying the Pledge proclaimed "our reliance on God" and was a way of "humbly seeking the wisdom and blessing of divine providence." But the Bush Justice Department, in its defense of the Pledge, later backed off on such religious intonations, and argued that the Pledge, like the coin-stamped slogan "In God We Trust," is merely a patriotic nod to America's religious history.

During last week's oral arguments, the justices seemed to acknowledge that view repeatedly, according to American Center for Law and Justice attorney Jay Sekulow, who attended the hearings. The justices, including liberals Ruth Bader Ginsburg and Stephen Breyer, "seemed to all acknowledge that the Pledge reflected the religious history of the United States," Mr. Sekulow said. "They didn't seem to view it as a prayer at all."

Mr. Newdow, who argued his own case, "did a very good job as an advocate for his position," Mr. Sekulow added. "But the court seemed to discount significantly his characterization of the Pledge as a prayer. I think that will hurt his overall case."

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