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“Justice Scalia to Stay Out of Pledge Case”

(AP, October 15, 2003)

Antonin Scalia will just be a spectator when the Supreme Court tackles the emotional Pledge of Allegiance case next year, sidelined apparently by one man's questions about the justice's impartiality.

The court, minus Scalia, said Tuesday it will decide if the regular morning classroom salute to the American flag is unconstitutional because of the reference to God.

Scalia did not explain why he will not take part in the most watched case of the term.

The announcement surprised court watchers and even Michael Newdow, the California parent and atheist who wants the words ``under God'' removed from the pledge. He sued on behalf of his 9-year-old daughter and won.

Newdow asked Scalia to stay out of the case at the high court because of comments the conservative justice made during a speech at a religious event. Scalia criticized the appeals court ruling in Newdow's favor.

``I think that was an amazingly courageous and upstanding thing for him to have done. He was right to do it. I didn't expect that he would,'' Newdow said.

Justices decide themselves whether they have personal or financial conflicts in cases, and they generally give no explanation when they sit out a case.

Scalia's recusal makes a potentially close case even more tight.

The remaining eight justices could deadlock 4-4. That would affirm the 9th U.S. Circuit Court of Appeal's ban on the religious reference, which would apply to 9.6 million schoolchildren in the nine states the court oversees: California, Oregon, Nevada, Montana, Washington, Idaho, Arizona, Hawaii and Alaska, plus Guam.

``It makes our case more difficult,'' said Jay Sekulow, chief counsel of the American Center for Law and Justice, which is supporting the school district in the appeal. ``We've got to find that fifth vote, and that fifth vote is not going to be Justice Scalia.''

Newdow called attention to Scalia's remarks in a court filing. He said Scalia violated conduct rules that prevent judges from discussing the merits of cases during a speech at a ``Religious Freedom Day'' observance in January in Fredericksburg, Va.

The event was sponsored by the Knights of Columbus, a Roman Catholic men's service organization which campaigned in 1954 to add the words ``under God'' to the Pledge of Allegiance.

Scalia said in the speech that courts have gone too far to keep religion out of public schools and other forums, and that the Pledge of Allegiance question would be better decided by lawmakers than judges.

After the speech, the group Americans United for Separation of Church and State called on Scalia to recuse himself from the pledge case and possibly other church-state cases.

``This seemed so over the top, to be this pointed and specific in criticizing a decision which you had every reason to believe would soon be on your plate,'' the Rev. Barry Lynn, the group's executive director, said Tuesday.

Douglas Kmiec, a Pepperdine University constitutional law professor and former legal adviser to Republican presidents, said he didn't think the remarks crossed the line, noting they were similar to Scalia's written observations. But he said Scalia's absence leaves the court in a bind.

``To the extent the court issues a muddled opinion, or worst of all worlds a tied opinion ... they will be doing more damage by taking the case than if they just left it alone,'' he said.

The justices will hear arguments and rule in the case next year.

Newdow, a doctor and lawyer representing himself in the case, hopes to argue the case but he must get special permission from the court.

The case is Elk Grove Unified School District v. Newdow, 02-1624.