GWEN IFILL: The Pledge of Allegiance was on the court's docket today, specifically whether including the words "under God" is constitutional. It was a lively day at the court, and Marcia Coyle of the National Law Journal was there. NewsHour regular Jan Crawford Greenburg continues on maternity leave. So give us the basis of this challenge that brought the pledge to the court today, Marcia.
MARCIA COYLE: California has a law that requires school districts to engage in some patriotic exercise in the schools every day. And one way to satisfy the law is the Pledge of Allegiance. The Elk Grove School District, which is outside of Sacramento, had a policy that teachers were to lead students in the pledge everyday. Michael Newdow is a doctor and a lawyer, and his daughter attends one of the elementary schools in that school district. He objects to this. He feels that saying the pledge, particularly the phrase "under God" in the pledge, violates the establishment clause of the federal Constitution. He's the one who brought the challenge on his own behalf.
GWEN IFILL: So what is the argument against Newdow's position?
MARCIA COYLE: Well, the government in the court today was represented by Solicitor General Ted Olson and the school district also had its own lawyer argue, Terence Cassidy. And both of them, basically, take the same approach. They say this is not a religious prayer. This is not religion. The pledge is a patriotic exercise, and the words "under God" are just an acknowledgment of what our founding fathers believe. Solicitor General Ted Olson said the founding fathers believed that God gave them the right to declare their independence. And so there is no establishment of religion that would violate the Constitution.
GWEN IFILL: Newdow, as you said, is a doctor and a lawyer but not a practicing lawyer. Yet he was at the court basically representing himself. That's pretty unusual.
MARCIA COYLE: It is unusual. It's not unheard of, but he wanted to do this. He had carried the case in the lower courts and frankly he did a super job, I thought. He brought something to the court and to the argument that no hired lawyer could do. He could stand up before the justices and say, "I am an atheist. I don't believe in God. Every time the pledge is said, it feels like a slap in my face."
GWEN IFILL: And when he did that, what were the justices -- how were the justices responding? I gather there was also a little outburst, an unusual outburst in the courtroom.
MARCIA COYLE: In the courtroom. Yes, there was. The justices treated him, I thought, just like any other lawyer. They treated him with respect and they raised questions. For example, why is this any different from "in God we trust" on money?
GWEN IFILL: Who was raising that question?
MARCIA COYLE: This was Justice O'Connor. She also noted at the start of the court session every day, we say, "God save this honorable court." And Mr. Newdow responded, "But nobody makes you say, in the audience, get up and say 'God save this honorable court.' Nobody makes you say 'in God we trust' when we use money." But what's happening to his daughter is in the classroom. She has to say the Pledge of Allegiance. Now Justice Kennedy said she really doesn't have to.
GWEN IFILL: Can't she just stop speaking when she says "under God" and keep going?
MARCIA COYLE: Yes, she can. But, as he pointed out, the classroom, students in a classroom are something of a captive audience. And there is coercion in the classroom because the child doesn't want to stand out. There's peer pressure. And the court has said in earlier cases involving prayer and classroom that you cannot have this type of coercion.
GWEN IFILL: Kind of like prayers led at graduation.
MARCIA COYLE: Exactly.
GWEN IFILL: The court even said that is not acceptable.
MARCIA COYLE: The court has struck down prayers at graduation. It struck down prayers at the start of a high school football game.
GWEN IFILL: So the heart of this argument, then, is whether these two words constitute a prayer or inherently a religious act.
MARCIA COYLE: That's exactly it. And Mr. Newdow would say this is prayer. And look back to 1954 when the words were inserted into the pledge. Congress made it very clear on the record that it was putting the words in as an acknowledgment of the country's dependence on the creator and also to distinguish the United States from godless communism. He said that if this isn't a prayer, I don't know what is.
GWEN IFILL: We just were kidding a little bit earlier that there was an outburst in the court. What was that about and what happens when that happens?
MARCIA COYLE: Well, the chief justice said to Mr. Newdow, he said, "Well, when the words were inserted in the pledge, what was the vote in Congress?" And Mr. Newdow said, "I believe it was unanimous." And the chief looked at him and he said, "Well, it doesn't appear it was that divisive." And Mr. Newdow responded, "It wasn't divisive because no atheist was ever elected to Congress." And everyone broke into applause, almost everyone broke into applause, but Mr. Newdow was very serious. He pointed out for the chief justice that there are still eight states that have clauses in their constitutions, even though they're really null and void, prohibiting the election of atheists.
GWEN IFILL: And there was a lot of excitement outside the court today as well.
MARCIA COYLE: Yes, there was. I think it was probably the largest group that had gathered on the court's steps this year. There were pro-pledge people with microphones. One announced that if the court did not support the words "under God" in the pledge, it would become a major issue in the presidential election. There were on the anti-side, signs saying "democracy not theocracy."
GWEN IFILL: Does this court have to decide first whether Michael Newdow, as a non-custodial parent or a parent with joint custody of his daughter, has the right, the standing to bring this case?
MARCIA COYLE: Yes, it does. It's sort of the elephant in the room in this case. The justices spent most of the school district's lawyer's time talking about standing. The school district argues that the ultimate decision-maker for this child is the mother, who has custody and, in the custody order, is considered the ultimate decision-maker. Mr. Newdow questions that.
Also, he feels he has a right on his own to bring this case. He says that every time his daughter stands up and says the pledge and reaches the words "under God," she is basically being told that her father is wrong. The other thing he points out is that the quintessential religious question, he said, is, is there a God? And the government with the pledge is saying yes.
GWEN IFILL: Justice Scalia, who last week wrote a 21-page recusal in another case involving his serving on the court, a case involving Vice President Cheney, has recused himself from this case.
MARCIA COYLE: Yes, he has.
GWEN IFILL: Why?
MARCIA COYLE: Last year, after the ruling by the U.S. Court of Appeals for the 9th Circuit in the pledge case, the ruling that's now before the Supreme Court, he was at a rally and I think it was sponsored by a religious organization, and he criticized the 9th Circuit ruling in his speech. It was very, very clear that he had expressed an opinion. And Mr. Newdow asked him to recuse himself from the case, which he did.
GWEN IFILL: Okay. Marcia Coyle, thanks once again.
MARCIA COYLE: Thank you.