Jewish World Review Oct. 22, 2003 /26 Tishrei, 5764

Terry Eastland

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Case involving pledge should be easy for justices to decide | Justice Antonin Scalia won't participate in the Pledge of Allegiance case, which the Supreme Court accepted for review last week.

Justices typically don't explain their recusals, and Mr. Scalia didn't say why he took himself out of Elk Grove School District vs. Newdow.

The code of conduct for federal judges says a judge should avoid public comment on the merits of a pending case.

Mr. Scalia publicly criticized the 9th U.S. Circuit Court of Appeals last summer for ruling that the pledge is an unconstitutional establishment of religion since it describes the nation as "under G-d."

Michel Newdow, the self-professed atheist who brought the case, cited the justice's remarks last month in a filing that questioned Mr. Scalia's impartiality.

Maybe Mr. Scalia decided that his comments were grounds for recusal.

Yet he might not have taken himself out of the case if he thought his vote would be needed to break a 4-to-4 tie.

Mr. Scalia may know which way Newdow will go — though the rest of us obviously don't. But one can hope for the right outcome, and there surely are at least five justices — indeed, there should be eight — prepared to reverse the 9th Circuit.

The Supreme Court will consider two questions.

The first is whether Mr. Newdow has standing to challenge his daughter's California school district over its policy of having teachers lead students in reciting the pledge.

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When he initiated his case in 2000, Mr. Newdow claimed standing "as the father of a child attending the state's public schools."

But the matter has proved more than a little complicated.

Mr. Newdow and the mother of their daughter never married. The daughter lives with the mother, who wants her daughter to say the pledge.

The mother's wishes are important because she has sole legal custody. Or at least she did until last month, when a California court gave Mr. Newdow joint custody.

The implications of that decision for his standing in the pledge case are unclear, since the opinion detailing what "joint custody" will mean still is being written.

The complicated standing question no doubt would interest Mr. Scalia, and if he weren't recused, the oral argument probably would yield notable exchanges on the issue between the justice and Mr. Newdow, a lawyer who is representing himself.

But Mr. Scalia's recusal likely means that the court's interest in the standing question will wane and that the justices will reach the substantive question of whether having students recite the pledge is unconstitutional.

Actually, that should be an easy one for the court.

Sixty years ago, it held that public schools may not compel students to recite the Pledge of Allegiance.

Elk Grove (like every other public school district in the country) passes that test, since no student is forced to say the pledge.

As for the ostensibly unconstitutional words, "under G-d," which Congress added in 1954, the issue here is how they should be analyzed.

Agreeing with Mr. Newdow, the 9th Circuit lifted "under G-d" from the pledge and held that the prepositional phrase contains a profession of religious belief.

But it certainly is wrong to understand "under G-d" in isolation. The pledge needs to be taken in its entirety.

As such, it still is a pledge to the flag and the republic for which it stands.

It still is a patriotic statement and not a religious one, the words "under G-d" accomplishing the congressional intention of affirming the role of religion in the life of the nation.

That role traces back to Abraham Lincoln at Gettysburg ("that this nation, under G-d, shall have a new birth of freedom") and to the Declaration of Independence ("endowed by their Creator with certain unalienable rights").

The 9th U.S. Circuit Court of Appeals is famous for extreme applications of Supreme Court precedents.

It went to extremes in Newdow, and it in effect has invited the high court to affirm its extremism.

Surely — would that the recused Scalia could tell us! — it won't.

But if it does, expect that the bipartisan movement to amend the Constitution and declare the pledge just fine will be swift — and successful.

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JWR contributor Terry Eastland is is publisher of The Weekly Standard.Comment by clicking here.

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© 2003, Terry Eastland