It's one of the biggest cases this term, plunging the justices into a contentious social struggle that could be a centerpiece of the presidential election.
Gay marriage and Ten Commandments monuments won't be on the table when the justices debate the Pledge today in the case of Elk Grove Unified School District v. Newdow. But they form an important backdrop for the discussion, and the justices' ruling could shape the future of those arguments.
"They could draw some bright line rules here about church-and-state separation, and that would help people think about some of the other issues more clearly," said Doug Laycock, a University of Texas law professor and First Amendment expert. "They are all related in some way, and they're definitely connected politically in people's minds."
For Michael Newdow, the California doctor who challenged the Pledge on behalf of his school-age daughter, the case is clear. The First Amendment could not be plainer, he says, when it states that government shall observe no establishment of religion. Newdow is backed by more than a dozen church-state-separation activist groups and atheist organizations. The San Francisco-based U.S. Court of Appeals for the Ninth Circuit, widely viewed as the nation's most liberal, issued a stunning opinion in his favor in June 2002 and refused last year to reconsider it.
But the Elk Grove school district in Sacramento, Calif., says that there is nothing religious about the Pledge and that it is OK to have children recite it. The words under God - which were added to the 1892 Pledge in 1954 - are a patriotic expression, the district argues.
A broad coalition of religious groups, all 50 states, and the federal government also defend the Pledge, with diverse and sometimes conflicting arguments: It's an explicit acknowledgment of the country's religious founding; it's a harmless ceremonial nod to religious foundations; the Constitution doesn't call for explicit church-state separation.
The inconsistencies in the argument for the Pledge suggest to some scholars that Newdow has a strong case. Legally speaking, he probably does. While the Supreme Court has been increasingly tolerant of more neutral associations between government and religion, it has ordered a backing away from explicit endorsements of religious belief in public life.
It is fine, for example, for government to give parents public money that they can choose to spend on religious education. But school-led graduation prayers are off-limits.
"If they hold against the Pledge, it will change the whole dynamic of how government can acknowledge religious heritage," said Jay Sekulow, chief counsel to the American Center for Law and Justice, a nonprofit law firm devoted to religious and civil liberties. He is a frequent high-court advocate for religious interests. "It would call into question many traditions, like the national motto," which is "In God We Trust."
Still, he and others said the justices seemed unlikely to make a bold statement for separation on this issue. This court is not known for clear line-drawing on most issues, and tends to duck controversial high-profile social issues such as this.
It also has an out available: Because of a custody battle over Newdow's daughter - Newdow and the girl's mother were never married - his standing to bring the case has been challenged. The justices could rule against him without even reaching the issue of the Pledge.
For Newdow, who will represent himself today, that would be the ultimate low. Strident but personable, he is looking forward to an intense back-and-forth with the justices, whom he sees as open to his arguments.
"They all know that the threshold for this stuff should be pretty low," he said in Washington last week. "The Pledge fails any principle of the establishment clause, especially in the context of a school."
Newdow, an atheist, said his point was to protect religious students as well as nonreligious ones. "Because if atheists were a majority, we wouldn't be able to impose our views on the religious minority, either," he said.
Newdow predicts a win in the Supreme Court, but on narrow grounds. "I think they'll say you can't do this in schools, where people send their kids expecting not to encounter religious indoctrination," he said.
The vote? He says it will be 8-0. Justice Antonin Scalia, who probably would have been one of Newdow's most aggressive questioners, will sit out the case because he gave a speech supporting the Pledge last year.
Laycock, the Texas law professor, said that whatever the court did, the decision wouldn't quash the rising popularity of arguments over church and state.
"Both sides have gotten more aggressive in the claims they stake," Laycock said. "The conservative religious movements are bigger and more powerful, and they're exercising that muscle in many different arenas. On the other side, those pushing for a more secular society are not nearly as visible, but are also growing, and they're winning a lot of cases in courts. I don't see anyone backing down soon."
Derek Davis, who directs the J.M. Dawson Institute of Church-State Studies at Baylor University, agreed, but he said the justices almost certainly would uphold the Pledge.
"In America, we adhere to a close separation, but at the same time, we have lots of accommodations for what I would call civil religion," Davis said. "We have religious holidays that are national holidays. We put 'In God We Trust' on our money. The Pledge is no different, and I think the court will see it that way."
Contact reporter Stephen Henderson
at 202-383-6003 or shenderson@krwashington.com.
The battle over the words under God in the Pledge of Allegiance goes to the U.S. Supreme Court today. Justices are to hear arguments. The case began when a California atheist opposed the Pledge at his daughter's school. A2.
