The Bush administration asked the Supreme Court yesterday to keep the words "under God" in the Pledge of Allegiance as recited by public school students, urging the justices to overturn a lower court's ruling that the reference to God amounts to the establishment of an official religion.
In his 30-page petition to the court, Solicitor General Theodore B. Olson argued that the Supreme Court has long accepted the words of the pledge, and that Michael A. Newdow, the California atheist who brought the case on behalf of his daughter, lacked the legal right to sue.
"Whatever else the [Constitution] may prohibit," Olson wrote, "this Court's precedents make clear that it does not forbid the government from officially acknowledging the religious heritage, foundation and character of this Nation. That is what the reference to God in the Pledge of Allegiance does."
Olson said the appeals court's "error is so manifestly contrary to precedent" that the court may wish to overturn it summarily, without the usual briefing and oral arguments on the issue.
The current wording of the pledge was established in a 1954 federal law, adopted by Congress in an effort to distinguish religiously based American values from those of communism, which is atheistic.
A California law, similar to those in other states, requires that students at public elementary schools begin their day with a teacher-led recitation of the pledge, though the Supreme Court has long recognized the right of students who object to the pledge for any reason to remain silent without penalty.
The case began in March 2000, when Newdow filed suit in a California federal district court, alleging that the fact that his daughter, a second-grader, was obliged to listen to the pledge, even if she didn't have to say it herself, amounted to "the daily indoctrination" of his child and others with "religious dogma."
The district court dismissed his case, but last year a three-judge panel of the San Francisco-based U.S. Court of Appeals for the 9th Circuit ruled 2 to 1 in favor of Newdow, ruling that the phrase "under God" "impermissibly takes a position with respect to the purely religious question of the existence and identity of God."
The 9th Circuit court's ruling would have struck down the 1954 law itself, thus abolishing the current version of the pledge, at least in the West Coast states over which the court has jurisdiction.
But amid a huge outcry from politicians and the public, the court issued an amended opinion in February, limiting its holding to the California law that requires schoolchildren to say the pledge. The decision would have affected 9.6 million schoolchildren in the 9th Circuit's jurisdiction, but the court stayed its ruling on March 4, pending appeals.
Yesterday's filing by the Justice Department fulfills Attorney General John D. Ashcroft's previous pledges to fight the ruling
"The Justice Department will vigorously defend our nation's heritage and our children's ability to recite the pledge," he said in a statement.
Since the case hit the headlines, Newdow's child's mother, to whom he was never married, has come forward to say she wants the girl to say the pledge.
The Justice Department petition noted that only the mother, who has custody of the girl, has the right to sue on her behalf, and that Newdow cannot sue on his own behalf because he "has not suffered the invasion of any legally protected interest."
Newdow has 30 days to file his own brief opposing the Justice Department's, after which the Justice Department has 10 days to respond. The court would then consider the petition at a weekly conference and, if four justices are in favor, it will hear the case.