The Supreme Court plunges back into the nation's culture wars this week, exploring anew the role that religion can play in public life as the justices examine the constitutionality of the Pledge of Allegiance.
On Wednesday morning, the justices will hold a one-hour hearing with lawyers over the meaning of the words in the Pledge affirming that America exists "under God" -- a phrase that an appeals court said amounts to a religious exercise and must be omitted when public school children recite the Pledge.
The lower court ruling has been condemned by President Bush, both houses of Congress, and a multitude of political, religious, and conservative advocacy organizations. It has produced 51 legal briefs, more than in most cases, arguing the pros and cons of the issues before the Supreme Court.
The 2-to-1 ruling in February 2003 by the US Court of Appeals for the Ninth Circuit, based in San Francisco, has won the support of a number of organizations -- including Americans United for Separation of Church and State, the American Civil Liberties Union, and various atheist groups -- as well as a number of scholars of law, history, and religion. Americans United calls the case "the most controversial religion-in-schools case since the school prayer decisions of the early 1960s."
If the justices decide that the phrase "under God" makes the Pledge like a prayer, they could strike down its use in public schools -- the only setting at issue in the case. But if they are persuaded, instead, that the phrase is a patriotic expression, like the Declaration of Independence's statement that basic rights come from the "Creator," they probably would uphold the Pledge.
The ruling on that constitutional question could be difficult for the court either way, said Brett G. Scharffs, a law professor at Brigham Young University. "The court in this case is reaping the consequences of decades of vacillating and uncertain doctrine in this area of the law" -- the relationship between government and religion. The Pledge case, Scharffs added, may give the court an opportunity to clarify its doctrine.
Although a ruling either way on the Pledge would be a major event in constitutional law, two factors may prevent the court from deciding the question at all.
First, only eight of the nine justices will hear the case and decide it. Justice Antonin Scalia recused himself from the case after questions were raised about his impartiality because of sharp public criticism he had made of the Ninth Circuit decision.
Scalia's absence from the Pledge case raises the prospect of a 4-to-4 split, which would simply uphold the appeals court decision against the "under God" phrase but without an opinion by the justices. That would make the appeals court decision binding only in California and the eight other states included in the Ninth Circuit. But that would be a considerable result, affecting 9 million public school students.
Second, a basic question has arisen over whether the Supreme Court and lower courts have the authority to decide the case. That question involves a dispute, growing increasingly complex as the case unfolded, about whether the California atheist who successfully challenged the Pledge's recital in public schools had a legal right to bring his case. If he did not, his lawsuit would be dismissed, and the Pledge would stand as is.
But that would not make the issue go away. As a conservative advocacy group, the American Civil Rights Union, told the court in a legal brief: "There should be no doubt that, if this case is dismissed without decision, another test case on the same issue will be brought somewhere in the country, and in about three years that case will arrive in this court for determination." In the meantime, it added, school districts across the nation would have no reliable idea of whether teachers could lead students in the Pledge's recital.
The Justice Department -- along with the school district in Elk Grove, Calif., a suburb of Sacramento, that took the case to the Supreme Court -- have argued that the father, Michael A. Newdow, had no right to sue on behalf of his daughter because he does not have legal custody of her.
The child's mother -- the parents were never married -- has been given the right to decide on her education, the school district and the department argued.
But Newdow said his right to joint custody had been restored recently, and in any event, he had a right to sue on his own as the girl's father, to object to her exposure to a teaching he rejects.
When the court announced in October that it would review the case, it said it would consider the right-to-sue issue along with the constitutionality of teacher-led recital of the Pledge including the "under God" phrase.
But a retired justice of the California Supreme Court, Joseph R. Grodin, who is now a law professor at Hastings College of Law, has urged the justices to send the case back to California to get clarification of state law on the father's legal rights. "Matters of family law are uniquely the province of the states," Grodin said in a legal brief that supports neither party. By sending the case back to state courts on that issue, he said, the court would avoid ruling prematurely.
The stakes in the case are high if the court does rule on the Pledge's constitutionality, according to groups that want the Pledge upheld as written. All 50 states have taken that position, saying an unfavorable ruling could undermine the laws in 43 states, including Massachusetts, that require daily recitation of the Pledge in public school classrooms.
Massachusetts law specifies: "Each teacher at the commencement of the first class of each day in all grades in all public schools shall lead the class in a group recitation of the `Pledge of Allegiance to the Flag.' "
The National Education Association, a teachers union that has traditionally opposed religious activity in public schools, said it supports the constitutionality of the Pledge as written, calling it "a patriotic observance, not a religious exercise."