WASHINGTON–The Supreme Court announced Tuesday that it will attempt to settle the legal battle over the Pledge of Allegiance–but without the participation of one of its most conservative justices.
The court said it would consider whether the Constitution’s ban on official establishment of religion prohibits Elk Grove Unified School District near Sacramento, Calif., from asking children to recite the pledge, which includes the phrase “one Nation, under God.”
The court will also consider whether lower courts were correct in giving Michael Newdow, the atheist activist who sued to stop the pledge from being recited in his daughter’s school, the legal right to bring the case in the first place.
But, in a surprise move, Justice Antonin Scalia recused himself from the case, leaving only eight justices to hear arguments and reach a judgment. In the event of a 4-4 tie vote, the ruling of the San Francisco-based federal appeals court that struck down the pledge in schools would stand.
Scalia offered no public explanation for his unusual and unexpected decision, but Newdow filed papers with the court last month, asking for Scalia’s recusal based on the fact that the justice had spoken critically of the appeals court’s ruling at a Jan. 13 Knights of Columbus-sponsored religious freedom rally in Virginia.
“Under such circumstances … one might reasonably question his impartiality,” Newdow wrote.
The case is Elk Grove Unified School District vs. Newdow. Oral argument will take place at the court early in 2004, and a decision is expected by July.