Pledge of Allegiance Case Could Hinge on Child Custody Dispute

David Thibault | July 7, 2008 | 8:04pm EDT
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( - Overshadowed for the last year by war and politics, the case involving the constitutionality of the Pledge of Allegiance comes roaring back this week with the U.S. Supreme Court set to hear oral arguments.

At issue is whether it is unconstitutional to ask public school children to recite the pledge containing the words, "One Nation, Under God."

The U.S. Ninth Circuit Court of Appeals ruled that it is unconstitutional, but the decision was appealed to the Supreme Court. Children in the nine western states within the Ninth Circuit's jurisdiction await the outcome, but if the Supreme Court agrees with the lower court, the case is sure to affect the entire country.

It may also produce more similar litigation targeting for example the use of the phrase, "In God We Trust" on American currency.

But in trying to convince the nation's highest court to overrule the Ninth Circuit, the U.S. Solicitor General's office Wednesday will argue that the California man who brought the case has no legal standing.

Michael Newdow, vilified by many, praised by others for trying to spare his daughter from having to recite the religious phrase at her school, does not have custody of the girl, who is now a teenager.

The mother of the child, whom Newdow never married, has custody and, by order of a state court, the responsibility of educating the child, according to court documents and sources who spoke with

Newdow's argument, that asking children to recite the Pledge of Allegiance with the reference to "One Nation Under God" is coercive and unconstitutional, is attacked in the latest brief filed by Solicitor General Theodore B. Olson's office.

"The first problem with that argument," the brief states, "is that there is no allegedly coerced schoolchild before this Court. There is only a father who lacks any legal right to control the educational or religious upbringing of his child, and therefore lacks standing."

Justice Antonin Scalia, perhaps the most conservative member of the Supreme Court, has removed himself from the case after making public comments in the past about the issue. Without Scalia, the case could end up in a 4-4 tie, a victory for Newdow since the Ninth Circuit decision would be allowed to stand.

If the Supreme Court agrees that Newdow does have legal standing, it will have to judge the case on its legal merits, tackling an issue with deep cultural, political and historical roots.

America's founding fathers were "enlightened citizens of their day and they sought to disestablish religion and that's why they wrote the Establishment Clause" of the U.S. Constitution, said Ellen Johnson, president of American Atheists, Inc. The group has filed an amicus brief in the Newdow case.

"The government ... cannot instruct its citizens to say those words (One Nation Under God). That's all we're asking, just as you would not want our government instructing you to say that there is no God," Johnson told

Despite the 1963 Supreme Court decision that eliminated prayer from public schools, Johnson believes there are more public displays of religion now than ever before and wonders why Americans are so concerned about the eventual impact of a Supreme Court decision favoring Newdow.

"Our members of Congress sing God Bless America on the Capitol steps. We have chaplains in our Congress. We have religious displays on public property. Christmas is a national holiday. I don't know what you're all worried about," Johnson said.

The religious phrase at the center of the Newdow case was added to the Pledge of Allegiance in 1954. And Brad Dacus, president of the Pacific Justice Institute, believes the action taken by Congress and then-President Dwight Eisenhower to modify the pledge was consistent with what the framers of the Constitution would have wanted.

"The sole justification of our nation - the Declaration of Independence against the ... British Empire ... was not based on the economic whims or political fancies of the day," Dacus told

"It was premised on the idea that there is a law higher than the king ... a law of rights endowed by our creator, and that's God, and that the king violated those higher laws," he added. "That was the foundation and the justification of our nation's very existence."

Some Americans may not like the idea that the nation's founding fathers were guided by their religious beliefs, "but as a matter of history and heritage, it is an indisputable fact," said Dacus, whose organization has also filed a brief in the Newdow case.

American Atheists plan to sponsor a rally Wednesday in front of the Supreme Court, but Johnson is already considering the next line of attack should Newdow emerge victorious.

A legal challenge to the "In God We Trust" motto is a logical next step, Johnson said. "I can only hope. Yeah, I think that would be great. I think it would be great to turn our country back to the secular country it was supposed to be," she added.

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