The school board of Elk Grove, Calif. is asking the high court to overturn a ruling by the 9th U.S. Circuit Court of Appeals in San Francisco that said the school board’s policy of daily recitation of the pledge violates the U.S. Constitution’s provision against a government role in the establishment of religion because the pledge includes the words “under God.”
The school board contends that recitation of the pledge in school is not a violation of the Constitution. Under California law, teachers are required to lead students in optional “patriotic observances” at the beginning of each school day.
In the Elk Grove School District, willing students recite the Pledge of Allegiance, which states, “I pledge allegiance to the flag of the United States of America, and to the republic for which it stands, one nation under God, indivisible, with liberty and justice for all.”
In 2000, Michael Newdow, the father of an Elk Grove student, filed suit against the school system in federal district court in California, complaining his daughter “is compelled to watch and listen as her state-employed teacher in her state-run school leads her and her classmates in a ritual proclaiming that there is a God, and that ours is ‘one nation under God.'”
Newdow’s personal Web site says he is the founder of the First Amendment Church of True Science.
“Although that ministry holds a firmly atheistic view of the world, it strongly supports the ideals behind the religion clauses of the First Amendment of the United States Constitution,” the Web site says.
Newdow’s original court complaint says that “for the state to ever subject plaintiff’s daughter to such dogma — expressing and inculcating purely religious beliefs that are directly contrary to the religious beliefs of plaintiff and the religious ideals he wishes to instill in his child — would be of questionable constitutionality. For it to do this every single school day for 13 years — using plaintiff’s tax dollars, no less, to accomplish the affront — is an outrageous and manifest abuse of power in direct violation of the religion clauses of the constitutions of both the United States and the state of California.”
The U.S. District Court dismissed Newdow’s lawsuit, ruling that the school board’s pledge recitation policy is not a violation of the Constitution’s religion clauses. In its dismissal, the court cited a prior federal court ruling that said pledge recitation is constitutional as long as children are not compelled to participate.
Newdow appealed the case to the 9th U.S. Circuit Court in November of 2000.
In March 2002, the 9th Circuit Court ruled that the recitation of the pledge in school violates the First Amendment.
“In the context of the pledge, the statement that the United States is a nation ‘under God’ is a profession of a religious belief, namely, a belief in monotheism,” the court said in its published opinion.
The court further said, “The school district’s policy â€¦ places students in the untenable position of choosing between participating in an exercise with religious content or protesting.”
The court also said the school board’s policy has a “coercive effect … given the age and impressionability of schoolchildren, and their understanding that they are required to adhere to the norms set by their school, their teacher and their fellow students.”
President Bush joined Republican and Democratic congressional leaders and, according to opinion polls, the majority of the American public in criticizing the court’s decision.
On Wednesday Newdow, who is representing himself, and attorneys representing the opposing side — which includes the Elk Grove School Board, the state of California, President Bush and the U.S. Congress — argued before the nine justices of the high court.
“I am an atheist. I don’t believe in God,” Newdow told the court, according to the Reuters news service. “My daughter is asked to stand up and say her father is wrong.”
Elk Grove School Board attorney Terence Cassidy said the case should be dismissed since Newdow lacks “standing” in the case because he does not have custody of his daughter who reportedly lives with her mother.
“The ultimate decision-making authority is with the mother,” Cassidy said.
According the school board’s petition, Newdow’s daughter is a Christian who does not object to saying the pledge. The girl’s mother Sandra Banning has told reporters she does not want her daughter involved in the case.
U.S. Solicitor General Theodore Olsen argued that the Pledge of Allegiance is a “ceremonial, patriotic exercise,” that doesn’t violate the Constitution.
Olsen’s argument echoes the school board’s petition to the high court, which cites previous Supreme Court decisions that have said references to God in government-sponsored settings do not necessarily violate the Constitution if they are based on historical precedent.
“Review of this case is … warranted because of the need for this court to clarify the difference between the traditional role of religion in our national life and what constitutes the establishment of religion or interference with the free exercise or non-exercise of religion,” the school board stated in its brief, citing “myriad examples of the historical importance of religion on the daily lives of our ancestors.”
The First Amendment states in part: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
Legal scholars have said that the 14th Amendment, which defines the limits of state laws, has been used by the courts to “incorporate” the Bill of Rights, or first ten amendments to the Constitution, “against” the states — meaning that state governments had to abide by the provisions in the amendments.
The 14th Amendment says “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
The pledge case has spawned a slew of amicus briefs — petitions to the court from outside groups in support of either side of the case.
A number of U.S. lawmakers, both Democrats and Republicans, have filed petitions in support of the school board along with groups such as the American Legion, the National Education Association, the American Jewish Congress, the Christian Legal Society, and the Catholic League for Religious and Civil Rights. The state of Texas and the state of Idaho have also filed in support of the school board.
American Atheists, the American Humanist Association, Americans United for the Separation of Church and State, the Anti-Defamation League, the Church of Free Thought and other groups have filed petitions in support of Newdow.