Justices take on high-profile First Amendment cases

Wednesday, October 15, 2003

WASHINGTON — Sacramento atheist Michael Newdow's solitary quest to remove the words “under God” from the Pledge of Allegiance took a major step forward yesterday as the Supreme Court agreed to consider the issue — minus Justice Antonin Scalia.

Scalia recused himself in apparent response to Newdow's suggestion that a speech given by Scalia in January betrayed a predisposition against Newdow's argument that the reference to God violates the First Amendment's establishment clause.

With Scalia out of the case, Newdow has to convince only four justices — not the usual five — in order to preserve the victory he won before the 9th U.S. Circuit Court of Appeals. A 9th Circuit panel ruled in June 2002 that requiring teachers to lead public school students in reciting the pledge amounted to coercion and had the impermissible effect of advancing religion.

The high court's decision to review Elk Grove Unified School District v. Newdow came on a day dominated by high court action on pending First Amendment cases. The Court also granted review of two other petitions raising recurring First Amendment issues: Ashcroft v. ACLU II, testing the constitutionality of the Child Online Protection Act, and Littleton, Colo. v. Z.J. Gifts, asking how promptly courts must review the denial of licenses for adult businesses. In addition, the Court denied review in another closely watched First Amendment case: Walters v. Conant, in which the Bush administration had asked the Court to uphold regulations prohibiting physicians from discussing medical marijuana with patients.

But the pledge case promises to dominate national debate in coming months, provoking strong emotions over religion and patriotism at a time of war. The Court will hear arguments in the case early next year, with a decision likely before the end of June.

“I hope the Court can avoid turning this case into as major battleground in the culture wars at the height of a presidential election campaign,” said Steve Shapiro, legal director of the American Civil Liberties Union.

That may prove difficult, since a ruling in the case could affect references to God in a wide range of everyday settings, from currency and coins to the Supreme Court marshal's daily admonition as sessions begin: “God save the United States and this honorable court.” These references have been defended as forms of “ceremonial deism” stripped of religious meaning by their frequent use. But whether the current Court will adopt that rationale is difficult to predict, especially with Scalia not voting.

Even those justices who think the pledge is otherwise constitutional — and several have said so in passing in other decisions — may find it a closer case in a school setting, where students may not be expected to discern the difference between real and merely rote deism.

“It's a real challenge now. There are a whole lot of ways it could turn out,” said Jay Sekulow, director of American Center for Law and Justice, which is urging the Court to retain the words “under God” in the pledge. “We're surprised by Scalia's back-out.”

Newdow supporter Barry Lynn of Americans United for Separation of Church and State, was optimistic yesterday: “There is a very real chance that the separationists will gain four votes. We're surprised and delighted that Scalia recused.”

Newdow's recusal request was based on a speech given by Scalia in January in which he suggested that the way to get the words “under God” out of the pledge was through an act of Congress — not by court action.

The Supreme Court in its order granting review of the case framed the issue with wording that could spotlight the role of teachers as well as students in the daily pledge ritual. One of the questions the Court asked the parties to explain in their briefs was the constitutionality of the Elk Grove policy that “requires teachers to lead willing students in reciting the Pledge.” But several experts said that focusing on teachers might not be a winning argument for Newdow, because the Court in the past has held that public school faculty members can be required to teach facts and ideas with which they disagree.

The justices also indicated that they want to consider an issue in the case that could provide them a way to sidestep the volatile pledge debate altogether: whether Newdow has standing to bring the suit on behalf of his 9-year-old daughter.

The standing issue arose because from February 2002 until last month, Newdow did not have legal custody of his daughter. The girl's mother, Sandra Banning, contests Newdow's standing on the pledge issue and has also informed the Court that she has no objection to her daughter saying the pledge. In a California Superior Court proceeding last month, Newdow regained partial legal custody, though Banning's lawyers still contest his standing.

Newdow, a lawyer and physician who plans to argue the case before the high court himself, is eager to make his case for standing. In interviews, he speaks as passionately about what he sees as the injustices of the family court system in California as he does about the pledge issue.

“It would be a shame to see this opportunity to straighten out the establishment clause go by the boards because of the standing issue or Scalia's recusal,” says Kevin Hasson of the Becket Fund for Religious Liberty. The Becket Fund filed a brief against Newdow for the Knights of Columbus, a Roman Catholic organization. “Scalia's recusal shifts the center of the Court to the left.” Convincing the justices to overturn the 9th Circuit will become a “much harder sell,” Hasson says.

Also yesterday, the Court acted on these other First Amendment cases:

  • Ashcroft v. ACLU II, the sequel to an earlier case challenging the 1998 federal law that seeks to restrict children's access to pornography online. The 3rd U.S. Circuit Court of Appeals struck the law down on the basis that it used “community standards” to define what should be put off limits to children. Such a standard is inappropriate for the Internet, the appeals court found.

    The Supreme Court last year sent the case back to the 3rd Circuit to clarify its reasoning. The appeals court struck it down again last March, this time on the basis that it was too broadly worded and would restrict adult access as well. The Bush administration appealed, and the Court agreed yesterday to hear the case.

    “It's a good sign for America's children that the Court has decided to revisit the issue,” says Patrick Trueman of the Family Research Council. “There is no logical or legal reason not to hold pornography peddlers liable for providing minors with material they cannot legally possess.” The ACLU's Shapiro says it is not surprising that the Court would grant review, but he is optimistic that the justices will apply Court precedents — notably the 1997 case Reno v. ACLU — to strike down the law.

  • Littleton, Colo. v. Z.J. Gifts, in which the Court will consider the meaning of the “prompt judicial review” requirement articulated by its 1990 decision FW/PBS, Inc. v. Dallas. Because of free-expression values involved, the Court required prompt review when local governments deny licenses to adult businesses. But lower courts have split over whether the rule means a prompt judicial decision, or merely that judicial review should be begun quickly. The 10th Circuit found that a Littleton ordinance gave reviewing courts too much discretion to meet the requirement. The issue has been before the Supreme Court before, but has not been definitively resolved.

  • Walters v. Conant, in which the Bush administration fought to save rules restricting the advice physicians can give on medical marijuana. The policy was imposed after California voters approved a medical marijuana initiative in 1996. Under the initiative, people whose doctors recommended marijuana use could not be prosecuted for possession. To thwart the measure, the Clinton administration threatened to revoke the licenses of doctors who made such recommendations. Physicians challenged the rule as a restriction on their free speech that harmed patients with AIDS, severe cancer and other ailments that could be alleviated by marijuana. The 9th Circuit sided with the doctors, and the Bush administration appealed. It was widely expected that the high court would grant review, but the Court denied it without comment. The action has the effect of nullifying the federal policy in the 9th Circuit's jurisdiction, which includes six states besides California that have legalized medical marijuana — Alaska, Arizona, Hawaii, Nevada, Oregon and Washington. Similar laws have passed in three other states not within the 9th Circuit: Maine, Colorado and Maryland.

    “The Supreme Court's action today protects doctors and patients from government censorship of open and honest discussions in the exam room,” said Graham Boyd, director of the ACLU's Drug Policy Litigation Project, which represented the physicians. “Patients deserve access to accurate information about all possible medicines from their doctors, including medical marijuana.”

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