Justices Return to Face Issues of Religion and Politics
Pledge of Allegiance Case Tops Docket in New Court Term

By Charles Lane
Washington Post Staff Writer
Sunday, October 5, 2003; Page A16

In its past term, the Supreme Court made history on issues of race and sexuality, upholding affirmative action in university admissions and affirming gay rights through a far-reaching ban on state sodomy laws.

Having thus reminded Americans of the impact its decisions can have on their lives, the court turns this term to no less contentious matters of religion and politics.

As the justices return to the bench Monday, the most explosive issue pending at the court is the ban imposed on the Pledge of Allegiance in West Coast public school classrooms by a San-Francisco-based federal appeals court. The court ruled that the phrase "one nation, under God" violates the federal constitutional prohibition on official religion. And later this fall, the justices will hear a case from Washington state about whether the Constitution requires states that offer college scholarships to include students who are studying for the ministry.

Having held an unusual four-hour oral argument in September on the McCain-Feingold campaign finance law, the court is due to deliver a major ruling on money in politics before the beginning of 2004. And at a time of intense partisan wrangling over redistricting in several states, the justices will decide a challenge by Pennsylvania Democrats to a redistricting plan they say was designed by the Republican legislature to perpetuate GOP control over the majority-Democratic state.

"It's going to be hard to match last year," said Steven Shapiro, national legal director of the American Civil Liberties Union. "But potentially the big issue of the term is going to be the Supreme Court's impact on the political system."

Beyond matters of church and state, this could also be the term the court decides to hear a case on the Bush administration's conduct of the war against terrorism.

The case involves a Saudi-born U.S. citizen, Yasir Esam Hamdi, who was captured with the Taliban in Afghanistan and who has been jailed as an "enemy combatant" at a U.S. military base. A Richmond-based federal appeals court upheld the president's authority to hold him for the duration of the war without accusing him of a crime or letting him meet with his attorneys, but Hamdi's lawyers recently presented the justices with their appeal.

Among the 50 cases the court has agreed to hear this term -- of an expected 80 or so -- is a Tennessee case that could decide whether states can be sued under the federal civil rights law requiring access to public buildings for disabled individuals. In addition, the court will hear a group of cases that will determine what interrogation tactics police may use without violating a suspect's constitutional right against self-incrimination.

For residents of the Washington area, the justices will decide a dispute between Maryland and Virginia over control of the Potomac River, the water of that is the lifeblood of the metropolitan area and a key to future suburban development.

Given the prominence of religion cases this term, it may be fitting that oral argument will not take place on the first Monday in October as usual; for the first time, the court put arguments off a day because of Yom Kippur, the Jewish holiday. The court will appear for routine orders and then adjourn.

The Pledge of Allegiance case, U.S. v. Newdow, No. 02-1574, began when a Sacramento atheist, Michael A. Newdow, filed a lawsuit in a California federal court, arguing that the 1954 federal law amending the pledge to include "under God" was unconstitutional, and that a California law requiring teachers to lead their classes in the pledge each day imposed an unconstitutional sectarian observance on him and his daughter, an elementary school student.

Newdow's claim was eventually upheld, 2 to 1, by a three-judge panel of the San Francisco-based U.S. Court of Appeals for the 9th Circuit. But after the ensuing public outcry, the panel modified its ruling to bar the mandatory recitation of the pledge in schools in the circuit, which encompasses nine western states, rather than invalidating the pledge as such.

Many legal analysts regard the 9th Circuit's ruling as defensible in light of past Supreme Court rulings that have struck down school prayer, state-required moments of silence in school and even, in 1992, a nonsectarian prayer at a high school graduation ceremony, which the court saw as a form of religious coercion.

"The pledge is clearly a governmental action, and for that reason there's an argument it's invalid," said Walter Dellinger, an acting solicitor general during the Clinton administration. But Dellinger added that, in his view, "it's an argument that fails only because inclusion of 'under God' does not necessarily amount to a prayer."

Few court-watchers expect a majority of the justices to uphold the 9th Circuit's decision, which has yet to take effect pending Supreme Court action. The Bush administration has argued that the court should overturn the 9th Circuit decision summarily, without an oral argument in which Newdow, a self-styled minister in the First Amendmist Church of True Science (FACTS), would seek to represent himself.

The court could try to dispose of the case on procedural grounds, perhaps by asking the lower courts to reconsider the question of Newdow's right to bring the case in the first place, given that he lacked legal custody of his daughter when he filed his suit.

The Washington state case, Locke v. Davey, No. 02-1315, arises out of Joshua Davey's effort to use $1,125 in state scholarship money to major in pastoral ministries and business management and administration at a small Christian college in the state.

School officials said they could not accept the money because Washington law provides that "no aid shall be awarded to any student pursuing a degree in theology."

The law was written that way in part because Washington's state Constitution says, "No public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or the support of any religious establishment." Similar language is contained in 36 other state constitutions.

Davey contends that he is being denied his First Amendment right to the free exercise of religion. Washington contends that the provenance of its constitution's language should not diminish the state's right to set up a relatively strict barrier between church and state.

In 2002, the Supreme Court ruled that states could provide aid to students for use as tuition in private sectarian schools. Since then, voucher opponents have tried to fight them by citing state constitutional provisions.

A ruling in favor of Davey could mean that states are not only permitted by the federal Constitution to provide scholarship aid to religious institutions, but required to do so, whenever they offer similar aid to nonsectarian schools.

"For better or worse, this is a case on which millions of children's education depends," said Eugene Volokh, a professor of law at UCLA.

Tennessee v. Lane, No. 02-1667, centers on whether Congress, in enacting the landmark Americans With Disabilities Act, had the authority to subject state governments to lawsuits for damages when they deny disabled people equal access to state "services, programs or activities."

In 2001, the court ruled that the ADA may not be applied to state governments in cases of alleged employment discrimination.

That ruling was backed by Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor, Antonin Scalia, Anthony M. Kennedy and Clarence Thomas, who have generally formed a united front in favor of state sovereignty in a series of cases dating from the mid-'90s.

However, that trend moderated somewhat in the past term, when the court voted 6 to 3, with Rehnquist and O'Connor in the majority, to permit suits for damages against the states under the federal Family and Medical Leave Act.

The Bush administration is siding with disability rights organizations in this case. The organizations feel their hand is strengthened by the dramatic facts of Tennessee v. Lane: George Lane, a paraplegic, was arrested when he refused to crawl or be carried up the stairs to a second-floor courtroom where he was to appear as a defendant in a criminal trial.