Posted 12:03am October 24

by Nell McGarity
U-WIRE Washington Bureau

The pledge of allegiance case, which will be heard by the Supreme Court without conservative Justice Antonin Scalia next year, will bring forth not only questions of the constitutionality of the phrase “under God” in the pledge, but also the issue of legal standing.

The case, brought forth by atheist Michael Newdow, argues that his right as a parent is being infringed upon when his 9-year-old daughter is forced to accept others’ religious beliefs by reciting the pledge every day in school.

Reviewed by the 9th Circuit, the San Francisco-based liberal federal appeals court ruled that the public schools’ reciting the pledge’s phrase “under God” was unconstitutional. However, the 9th Circuit’s decisions are often over ruled by the more conservative Supreme Court.

Acting as his own lawyer, Newdow faces two key questions before the court: whether he had legal standing at the time the case was filed and whether or not the school policy that says teachers are “required to lead willing students” in the pledge is constitutional.

“The father is asserting that he is entitled to the upbringing of his daughter and what she is exposed to at school,” said Steve Wermiel, Professor of Constitutional Law at American University. “The pledge is preventing him from shaping her religious beliefs but that may not survive the question of standing.”

“They may throw out the case based on this alone without saying anything about the law,” he said.

Newdow has recently gained legal custody of his daughter. However, there are reports that his daughter does not object to the pledge at all.

“The problem is whether the father, at the time of filing, actually was an injured party because at the time of the filing he did not have legal custody. But he isn’t asserting [his daughter’s] rights, he’s raising his own,” said Wermiel.

While the first issue of standing may end the case without comment on the school board’s policy, the courts framing of the second point reframes the argument in terms of “willing students.”

“While the 9th Circuit ruling had a plausible basis, by emphasizing the school board policy, the court skewed the issue. Part of the Supreme Court’s rationale is to protect the center and focus on willing students because the only objector seems to be Mr. Newdow,” said Case Western Reserve law Professor Jonathan Entin.

Adding another layer to the case, Justice Antonin Scalia has recused himself from hearing the case, offering no explanation, as is custom with the court. This absence opens up the possibility of a 4-4 split, which would allow the 9th Circuit ruling to stand.

“I really don’t think he needed to recuse himself. I guess we don’t want justices to comment on pending cases, but there is nothing that Justice Scalia said that would come as a surprise to anyone based on his work and other speeches on church-state related issues,” said Wermiel.

Entin agreed. “He made a comment off the bench, but justices, in opinions, often indicate their feelings on things. His comments were probably ill advised, but had he made them in an opinion he might have had to recuse himself,” he said.

Newdow had filed papers on September 9 with the court asking Scalia to remove himself citing that he violated the code of conduct for United States judges that states, “Judges should avoid public comment on the merits of a pending or impending action.” This came from comments Scalia made on the case at a January Religious Freedom Day rally in Fredericksburg, VA.

“I think in this case we must ask what impact it will have on our civic life if it ends in a 4-4 tie. Meaning, is there a greater harm that Justice Scalia may have bias than if we had a definite answer. Some may say yes, but I think the question needs to be asked,” said Wermiel.

The case, Elk Ridge Unified School District v. Newdow, will be heard early next year.