Washington The Supreme Court announced Tuesday that it will hear the dispute over the phrase "one nation, under God" in the Pledge of Allegiance -- but without one of its most conservative justices.
The court said it would review a San Francisco-based federal appeals court's ruling that the pledge's reference to God turns daily recitations by public school children into an unconstitutional state-sponsored religious ritual.
But in a surprise move, Justice Antonin Scalia recused himself from the case, leaving only eight justices to reach a decision. If there is a 4-4 vote, the lower court ruling would be affirmed.
Scalia offered no public explanation; justices customarily do not specify their reasons for recusing.
Cost of exclusion
But Michael Newdow, the atheist opponent of the pledge who is acting as his own lawyer, filed papers Sept. 9 with the Supreme Court, asking Scalia to bow out because the justice had spoken critically of the 9th Circuit ruling at a Religious Freedom Day event Jan. 12 in Fredericksburg, Va.
On that occasion, Scalia cited the 9th Circuit decision as an example of what he considered mistaken attempts to "exclude God from the public forums and from political life."
Newdow, of California, argued that this violated the code of conduct for United States judges, which says that "a judge should avoid public comment on the merits of a pending or impending action."
"Under such circumstances ... one might reasonably question his impartiality," Newdow wrote.
Legal analysts said that, if Scalia's recusal was prompted by his comments, it would be an extremely rare occurrence on a court whose justices generally avoid even indirect public references to possible cases.
"It certainly shows the cost," said Eugene Volokh, a professor of constitutional law at the University of California at Los Angeles. "If the case ends up 4-4, that was a pretty expensive statement to make."
Case dates to 2000
All of the elements are in place for a dramatic denouement to a case that began with Newdow's effort to shield his daughter from religion and flowered into the stuff of nonstop cable TV when a three-judge panel of the U.S. Court of Appeals for the 9th Circuit ruled 2-1 against the pledge.
In deciding to entertain full briefing and oral argument on the case, the Supreme Court justices, displaying confidence once again in their ability to mediate even the most furious of the country's culture wars, brushed aside suggestions that they either decide the case summarily or find a way to avoid it on procedural grounds.
Newdow launched the case in federal district court in 2000, arguing that the Constitution prohibits both the wording of the pledge, which was established by an act of Congress in 1954, and a California law, similar to those in other states, that requires public elementary school students to start their day with a teacher-led recitation of the pledge.
By averring that the United States is "under God," Newdow argued, the pledge establishes monotheism as an official doctrine, to the exclusion of polytheistic or atheistic beliefs.
Under Supreme Court precedent, individual students cannot be required to recite the pledge, but Newdow claimed that his constitutional rights, and those of his daughter, then a second-grader in the Sacramento suburb of Elk Grove, were infringed on by her having to stand by as a state-sponsored religious ritual took place.
In June 2002, the 9th Circuit agreed with Newdow on all points. But that decision -- which would have rendered the pledge itself unconstitutional -- met with an outcry from across the political spectrum, and the 9th Circuit amended its ruling in February 2003 to bar only the officially sponsored recitation of the pledge in public schools.
The ruling applies to the nine Western states within the 9th Circuit, and has been put on hold pending Supreme Court action.
The court agreed to hear the appeal of the Elk Grove Unified School District, which argued in its brief that "the Pledge is a symbol of national pride and one of the most important exercises performed by citizens of the United States." The pledge "is not a religious act nor does it convey a religious belief," the school district added.
The case is Elk Grove Unified School District vs. Newdow. Oral argument will take place at the court early in 2004, and a decision is expected by July.