High Court to rule on the Pledge

In June 2002, a panel of the Ninth US Circuit Court of Appeals in San Francisco agreed with him. By a 2-1 vote it ruled that the modified pledge was an endorsement of religion.

Eight months later, the panel dropped its endorsement finding and narrowed its ruling by focusing on California's policy of teacher-led recitation of the Pledge. It ruled that, requiring teachers to lead students in reciting the words "under God" as part of the Pledge, converted a daily profession of patriotism into a coerced religious act.

"A profession that we are a nation 'under God' is identical, for establishment clause purposes, to a profession that we are a nation 'under Jesus,' a nation 'under Vishnu,' a nation 'under Zeus,' or a nation 'under no god,' because none of these professions can be neutral with respect to religion," wrote the court panel in its 2-1 decision.

If upheld by the nation's highest court, the panel's ruling would make it unconstitutional for teachers in California and 43 other states with similar policies to lead their students in reciting the Pledge as long as the words "under God" are included in it.

Under an earlier Supreme Court ruling, public school students who object to the pledge may not be required to participate. The appeals court expanded that ruling, saying that just the act of performing the Pledge in the presence of any objecting students amounts to impermissible coercion to participate in a government-authorized religious act.

At the heart of the appeals court decision was the neutrality reasoning used by the US Supreme Court in a 1992 case to strike down the offering of a prayer at public high school graduation ceremonies.

The resulting appeals court decision in the California case was in direct opposition to a 1992 decision of a federal appeals court in Chicago. In that case the appeals panel dismissed a lawsuit seeking to declare the Pledge unconstitutional.

"So long as the school does not compel pupils to espouse the content of the Pledge as their own belief, it may carry on with patriotic exercises," the Chicago appeals court ruled. "Objection by the few does not reduce to silence the many who want to pledge allegiance to the flag."

An additional issue in the case before the high court is whether Newdow, who is not married to his daughter's mother and who does not live with his daughter, has legal standing to object to the Pledge policy at his daughter's school.

The mother, Sandra Banning, says neither she nor her daughter objects to participating in the Pledge of Allegiance.

Ms. Banning "believes that the Pledge is an important patriotic expression of American ideals, and she wishes for her daughter to be able to recite the Pledge at school," says a brief to the court filed on Banning's behalf by Washington lawyer Kenneth Starr.

"Ms. Banning is particularly concerned by the undemocratic nature of the court of appeals' decision, which, if permitted to stand, would allow Newdow to impose his own agenda and particular sensibilities on everyone else," the Starr brief says.

The Ninth Circuit panel ruled that a noncustodial parent, like Newdow, has the right to challenge government policies that affect his or her child.

• Linda Feldmann contributed to this report from Washington.

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