“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.
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.
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
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.