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Skeptical Supreme Court weighs Pledge case

Justices debate whether saying 'under God' is reciting a prayer

From Bill Mears
CNN Washington Bureau

Newdow practices his arguments at the University of Maryland law school earlier this month.
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Supreme Court hears Pledge arguments
Supreme Court
Religion and Belief
Pledge of Allegiance

WASHINGTON (CNN) -- The Supreme Court Wednesday appeared skeptical that the Pledge of Allegiance was an unconstitutional government endorsement of religion, dampening calls by a California atheist to end the ceremony in his daughter's public school, and nationwide.

The Pledge "doesn't sound anything like a prayer," said Chief Justice William Rehnquist. "You can disagree with the phrase 'under God' but that doesn't make it a prayer."

At issue is whether the teacher-led Pledge should be banned for its use of the words "under God." Constitutional scholars have debated for years whether the pledge serves as both a patriotic oath and a form of public prayer.

A key aspect of the case is a family's custody dispute, underpinning important legal and social questions.

Michael Newdow, a physician and atheist, sued the Sacramento County, California, school district his daughter attended, claiming public recitation by students violates the 10-year-old child's religious liberty. While legal precedent makes reciting the pledge a voluntary act, Newdow says it becomes unconstitutional for students to be forced to hear it, arguing the teacher-led recitations carry the stamp of government approval.

"I have the right to be able to have my child in public school without her being indoctrinated with religious belief," Newdow told CNN. "This is supposed to be a public school and supposed to be religion-free."

Newdow told the justices the Pledge clearly violated the constitutional separation of church and state. "To say this is not religious is somewhat bizarre," he said.

'Far from a compulsory prayer'

In arguments Wednesday, many of the justices questioned whether the words "under God" represented government intrusion into religious doctrine or belief.

Justice Sandra Day O'Connor said there "so many references to God" in public affairs, noting "In God We Trust" was on U-S currency and coins. She added the Supreme Court opens all its public sessions with the words, "God save the United States and this honorable Court."

Besides, noted Justice David Souter, even if the words "under God" represented religion "in actual practice, it's an affirmation in the mindset of a civic exercise."

Souter added the Pledge "is so tepid, so diluted, far from a compulsory prayer."

"God is so generic in this context as to be a neutral" expression of belief, continued Justice Stephen Breyer.

"The child doesn't have to say the words," said Justice O'Connor. "You have the right not to participate."

Child would be singled out, father says

Newdow, who is not a practicing attorney, made an impressive, impassioned argument, declaring his daughter would be singled out by not saying the Pledge, and would be coerced to participate. "Imagine you're a third-grader in a class of 30 kids. That's enormous pressure to put on a child" to conform, Newdow said. "Government needs to stay out of the religion business altogether."

Newdow also said, "I want my belief system to be given the same weight" as those with a particular religious faith. He said using the pledge as written amounts to having the government tell his daughter "her father is wrong" because of what he believes.

The Bush administration opposes the ban, with Solicitor General Theodore Olson telling the justices the Pledge was simply a "ceremonial, patriotic exercise." He said there was "a major distinction" in public schools between reciting the Pledge, and reciting the Ten Commandments, promoting creationism, or displaying a crèche, all examples of what Olson said clearly were unconstitutional. "The Pledge is not a religious invocation, not a prayer," said Olson.

Complicating matters is Newdow's legal standing because of a custody dispute between him and the girl's mother. The two never married. Sandra Banning believes the pledge is a "patriotic expression" and claims her daughter does not object to reciting it.

The court spent significant time debating that issue, but offered no clear indication where it would rule on that aspect of the case.

Scalia recusal offers possibility of tie vote

Police stand guard next to a long line of people attempting to enter the Supreme Court in Washington Wednesday to hear arguments in the Pledge of Allegiance case.

Missing from arguments was conservative Justice Antonin Scalia, who recused himself from the case, at Newdow's request. At a Religious Freedom Day rally in January 2003, the conservative Scalia reportedly said any changes to the pledge should be done "democratically," through the legislatures, not the courts. He also reportedly said removing references to God from public forums would be "contrary to our whole tradition." Cameras were not allowed at the event.

That leaves the potential for a contentious 4-4 split among the remaining justices when it comes time to issue a ruling. A tie vote would mean the pledge would be banned in schools in the 9th Circuit, and potentially could apply to all public schools in the United States. Outside the Court, hundreds of demonstrators on both sides of the issued rallied, marched and gave speeches. There were mass recitations of the Pledge, and many sang patriotic songs such as "God Bless America."

A federal appeals court drew sharply divided public opinion when it banned the teacher-led pledge for the nearly 10 million schoolchildren in the nine Western states under the court's jurisdiction. In striking down the pledge, the judges in June 2002 ruled "the coercive effect of the policy here is particularly pronounced in the school setting given the age and impressionability of schoolchildren."

But the ban was put on hold until the high court issues a final ruling. The First Amendment bans government "establishment of religion," but the Supreme Court twice previously has declared the pledge constitutional.

A ruling in the case is expected by early July.

The case is Elk Grove Unified School District v. Newdow, case no. 02-1624.

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