Scalia's Recusal in Pledge Case Concerns Christian Attorneys

Jim Brown and Jody Brown | Agape Press | Thursday, October 16, 2003

Scalia's Recusal in Pledge Case Concerns Christian Attorneys

While pro-family legal groups are applauding the Supreme Court's decision to review the Pledge of Allegiance case that was appealed from the infamous Ninth Circuit Court of Appeals, there is some apprehension regarding the outcome.  The court will decide if it is constitutional for public school students to include the phrase "one nation, under God" when reciting the Pledge.

The high court has granted review on the controversial decision from the San Francisco-based Ninth Circuit, which barred teachers from leading willing school children in reciting the oath.  The appeal involves California atheist Michael Newdow, whose grade-school-age daughter hears the Pledge spoken daily.

Jordan Lorence, a senior attorney with the Arizona-based Alliance Defense Fund (, says although the Supreme Court reverses about two-thirds of the cases it takes, he is concerned about the potential outcome of this case.

"The bad news is that Justice Antonin Scalia, who would probably vote to uphold the Pledge, has announced that he's not going to participate in the decision of this case, which was quite a shock to most people," Lorence says.

The attorney says in traditional Supreme Court fashion, Scalia is not explaining his decision -- but Lorence has his suspicions.  "Earlier this year, he gave a speech to the Knights of Columbus at a rally in Virginia and talked about this case, and said that he thought the Constitution did not bar the words 'under God' from being in the Pledge of Allegiance," he says.  "The atheist who brought the case then asked for Justice Scalia to remove himself from hearing the case -- and it may be that that motivated [Scalia] to do that."

According to Lorence, Scalia's recusal is not a good sign.  "I'm not quite sure what this court is going to do with it without Justice Scalia's vote being added to the other eight," he says.

Like Lorence, constitutional attorney Brian Fahling foresees the possible ramifications of Scalia's non-involvement in the final ruling.  But Fahling, who is with the American Family Association's Center for Law & Policy (, also hints that the high court could avoid ruling on the merits of the case and, instead, might consider if the plaintiff has standing in the case.

He points out that Newdow, who brought the original lawsuit on behalf of his daughter, is not the custodial parent.  That role belongs to his ex-wife, Sandra Banning, a professed Christian who has testified in court that the daughter does not object to saying the Pledge.

"If the court finds that [Newdow] did not have standing," Fahling says, "then the case will be dismissed for lack of jurisdiction and children in public schools will again be free to say 'under God.'"

Oral arguments in Elk Grove Unified School District v. Newdow are expected in March or April, with a decision due by the end of June 2004.  If the decision should result in a 4-4 split, the decision would not set national precedent -- but it would uphold the controversial Ninth Circuit opinion that affects approximately 10 million children in the states of California, Alaska, Arizona, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.

© 2003 Agape Press.