Religion, patriotism to take center stage at high court
WASHINGTON -- A rush of patriotism amid the war on terrorism, and a continuing rise in religious fervor, are combining to make the new Supreme Court term that begins tomorrow a potentially volatile, highly visible challenge for the justices.
In fact, the case that seems to be attracting all eyes as the court formally reopens combines those two waves of public sentiment. It is the Pledge of Allegiance case, testing the current constitutional status of that declaration and the future of its well-known phrase about the nation "under God."
The Pledge case is not the only one arousing new interest in what the Supreme Court may do next on religion. In a few weeks, it will act on Alabama Chief Justice Roy Moore's two appeals trying to regain a right, denied by lower courts, to display the Ten Commandments prominently in the rotunda of the Alabama courts building in Montgomery.
Issues about war are on the way, too. In the two years since the terrorist attacks of Sept. 11, 2001, a few cases arising from the war on terrorism have reached the court, only to be turned aside. Now, the court is about to confront cases that would go to the core of the constitutional controversy over the Bush administration's responses to terrorism.
The cases challenge the longtime confinement in a military brig, without access to lawyers or family, of US citizens declared "enemy combatants," the denial of legal options for the suspects held at Guantanamo Bay, Cuba, and the shroud of secrecy that the administration has placed around the fate of those detainees.
It remains possible that some aspect of the case against Zacarias Moussaoui, the only person charged in a US court with crimes in the Sept. 11 attacks, will go to the court before that increasingly tangled proceeding is resolved.
Still, at this stage, the Pledge of Allegiance controversy seems to hold the center of public attention. Fascination with the case since a federal appeals court in San Francisco ruled 15 months ago that the Pledge was unconstitutional with the "under God" phrase included has only intensified as the time approached for the Supreme Court to react to it.
"If the court takes the Pledge case," Stephen R. Shapiro, legal director of the American Civil Liberties Union, said last week, "it will dwarf everything else the court does this year." That, he added, would not be because the case has heavy legal weight, but "because of the political impact."
The case, he and others have said, involved a fairly straightforward application of a number of the Supreme Court's past precedents on church-state relations.
The justices took their first look at the case last week at a closed-door conference assembled to select new cases for review. At this stage, the case does not involve the basic question of whether the Pledge is unconstitutional with "under God" left in it. Rather, the lower court, reacting to the furor over that more sweeping decision, altered the ruling to say that the Pledge as written cannot be recited by public school students without violating the Constitution.
After the justices' first look at the Pledge dispute and other cases, they added 10 cases to their decision docket, but that highly visible case was not among them.
So the wait continues. Each time the court issues another round of orders -- as it will, for example, on opening day -- the list will be scanned for word on the fate of the three separate appeals that comprise the Pledge case. One is by the Bush administration, one by a California school district, and one by a schoolgirl's father, Michael A. Newdow of Sacramento, an atheist who challenged the Pledge's reference to God.
Even with the narrowed version of the lower court decision against the Pledge, the widespread protest has not eased.
Congress was so upset that it rushed to reaffirm its commitment to the "under God" phrasing, and President Bush enthusiastically went along with the new legislation. Later, the House showed its displeasure further by voting to deny use of public funds to carry out that ruling, a gesture that has not yet won the necessary support of the Senate.
Since then, in school districts across the country, and in public governmental settings of many kinds, the Pledge has been recited with a new urgency fueled by war-stirred patriotism. The appeals court that found part of the Pledge unconstitutional, the US Court of Appeals for the Ninth Circuit, has been denounced with growing vigor.
Lawyers and legal scholars have widely speculated that the court will cast aside the lower court ruling without even holding a hearing, either because that decision is found to have been very wrong or because the father who filed the constitutional challenge had no legal basis for doing so. Newdow sued because he did not want his daughter to hear the Pledge recited, but the child's mother, who is not married to Newdow, said the father had no custody, and therefore no right to sue.
Other Pledge cases have been working their way through lower courts -- in Colorado, Pennsylvania, and Virginia -- so the issue may persist unless the Supreme Court settles everything in the pending case.
Even if the court passes up that case, it has already agreed to rule on another significant controversy over religion. That is a case from Washington state, involving a dispute over whether the state must provide scholarship money to a college student to study for the ministry, if it makes those funds available for students pursuing other majors.
To women's rights groups, that case has broader potential: It could reopen, they said, the question of whether the government must fund abortions for women who cannot afford them, something the court had said was not required. The theory, said Jennifer K. Brown, legal director of the NOW Legal Defense Fund, is that the court could rule in the divinity student case that the denial of funds violates the equal right to pursue a religious vocation, and "that would provide an excellent opportunity to make a new claim for funding of abortion for the poor: a refusal to fund the right to abortion would violate that right."
