The U.S. Supreme Court justice considered most likely to vote to overturn a lower-court ruling outlawing the Pledge of Allegiance in public schools will not join his colleagues in hearing an appeal of the controversial case.
Associate Justice Antonin Scalia announced Tuesday — the same day the Court said it would take the appeal — that he has recused himself from taking part. The reason? A speech he gave in January to the Knights of Columbus, in which he criticized the 9th U.S. Circuit Court of Appeals ruling that's up for review as "contrary to our whole tradition."
With Scalia on the sidelines, the outcome of Elk Grove Unified School District v. Newdow, the latest official name hung on the case, is a lot more difficult to forecast.
"With Justice Scalia, I think we would have had five clear votes to uphold the constitutionality of teachers leading students in the Pledge," explained Jordan Lorence, a vice president at the Alliance Defense Fund. "But without him, it's very possible this ends up in a 4-4 tie — and that does not make me sleep well."
Mat Staver, president and chief counsel of Liberty Counsel, was a little more optimistic — if cautiously so.
"I certainly would feel better if (Scalia) were there, but even without him I think we have the votes needed to overturn this," Staver said. "Then again, this Court really surprised me with its ruling in Lawrence v. Texas (which extended the so-called right to privacy to cover consensual homosexual sodomy), so anything, I'm afraid, is possible."
If, in Scalia's absence, the remaining eight justices deadlock at 4-4, the 9th Circuit ruling would be upheld — but only would be in force in the nine states in that court's jurisdiction: California, Nevada, Idaho, Montana, Oregon, Washington, Arizona, Alaska and Hawaii. If the court reaches a majority in either direction, the ruling would apply to every state in the country.
The issue in the case, according to Lorence, isn't whether the 31 words of the Pledge and the four that refer to America being "one nation under God" violate the First Amendment's Establishment Clause. The argument of Michael Newdow, the California atheist who filed the suit against his daughter's school district, is that it is unconstitutional for a public school teacher to lead students in reciting those words.
"This is similar to the school prayer cases of the '60s," Lorence told CitizenLink. "In those cases, students who objected (to praying) were allowed to opt out. It was only willing students who recited the prayers. But the Supreme Court got hung up on it because it was a government employee, a teacher, who was leading them in the prayer. So the argument here is to say, essentially, that 'under God' is like a prayer.
"It's basically making any religious word radioactive," Lorence added. "And that is utterly preposterous. But what is concerning to me is that there may be four (justices) who agree with that."
Those who do agree will affirm the 9th Circuit's finding, expressed in a majority opinion by Judge Alfred T. Goodwin, that "under God" is just as objectionable as "under Jesus," "under Vishnu" or "under Zeus" would be. Goodwin also noted, in a nod to the near-unanimous public outrage over the ruling — even notoriously liberal Senate Minority Leader Tom Daschle called the decision "nuts" — that "public sentiment or outcry" cannot be allowed to warp the Constitution.
The appeal is expected to be heard sometime next year, with a decision expected by June. Lorence said whatever the outcome, the case should spotlight for Christians the need to fight the kind of judicial tyranny perpetrated by the 9th Circuit.
"American citizens are going to have to start asking whether the constitutional system is out of balance when unelected judges can veto these things with such ease," he said. "We're not being ruled by elected officials and a written Constitution. We're being ruled by nine philosopher kings in a judocracy.
"How many of these decisions will we have before the people say, 'Enough'?"
TAKE ACTION
U.S. Sen. Wayne Allard and U.S. Rep. Chip Pickering have introduced identical bills in their respective chambers of Congress to strip federal courts like the 9th Circuit Court of Appeals from ruling on matters involving the Pledge of Allegiance, the national motto and the Ten Commandments. To learn more about these and other bills to fight activist judges, and to contact your congressman and senators and urge them to support those bills, visit the "Take Action" section of our Stop Judicial Tyranny Web site
