The U.S. Supreme Court granted review Tuesday in the case challenging the constitutionality of including the words "under God" in the Pledge of Allegiance. The Court will review a ruling from the U.S. Court of Appeals for the 9th Circuit that found the addition of the words "under God" transformed the Pledge from being a secular statement of patriotism into a violation of the First Amendment right against government establishment of religion. The Court has already ruled in the past that public school students cannot be compelled to recite the Pledge, but in the current case brought by Michael A. Newdow, the father of a public school student in Elk Grove, California, there are no allegations that students were forced to join in the Pledge of Allegiance. Rather, Newdow argues that the inclusion of "under God" in the Pledge was intended to instill religious beliefs in public school students and, as a result, even voluntary speaking of the Pledge should be off limits.

The justices will consider two questions when they hear the case in early 2004. First, the Court will consider whether Newdow is even the proper person to bring the constitutional challenge. There are serious questions as to whether Newdow is being injured by the recitation of the Pledge since he is a non-custodial parent. It is commonplace for parents to bring lawsuits on behalf of their minor children, but in this case not only is Newdow not the custodial parent of his daughter, who attends the Elk Grove school, but both his daughter and her custodial mother have gone public with their support for and desire to recite the Pledge. Second, the Court will consider whether the addition of the words "under God" create an establishment of religion when the Pledge is voluntarily recited.

The brief order placing the Pledge case on the High Court’s docket noted that "Justice [Antonin] Scalia took no part in the consideration or decision of … this petition." Such a statement suggests that Justice Scalia has recused himself from the case, apparently based upon his critical comments about the 9th Circuit’s decision at a Religious Freedom Day Event in Fredericksburg, Virginia, in January. If Justice Scalia does not hear the case, entitled Elk Grove Unified School District v. Newdow, No. 02-1624, then the Court may be evenly divided 4-4, thus upholding the ruling of the 9th Circuit by default.

For background on the Pledge case and the 9th Circuit’s decision, click here.