Newdow Seeks Scalia Recusal (October 2003)

Michael Newdow, the Sacramento doctor who is challenging “under God” in the Pledge of Allegiance, asked Supreme Court Justice Antonin Scalia in early September to recuse himself from participating in Newdow’s appeal. The atheist father, who is also an attorney bringing the legal action himself, won a landmark ruling by the Ninth U.S. Circuit Court of Appeals last summer declaring “under God” in the Pledge of Allegiance to be unconstitutional.

The original decision declared the 1954 insertion of “under God” into the once-secular pledge to be unconstitutional on its face. In February 2003, the Ninth Circuit panel amended its decision to apply only in public school settings. Newdow has asked the Supreme Court to reinstate the original, broader ruling. The Sacramento school district, with blessings from the U.S. Justice Department, is also appealing. The Court is expected to consider whether to hear the appeals during a closed-door session on Sept. 29. It could turn back the appeals, thereby letting stand the Ninth Circuit ruling, which applies to ten western states.

It could vacate the Ninth Circuit decision, as requested by the Justice Department and the school district. Or it could accept the case. Newdow filed a brief, “Suggestion for Recusal of Justice Scalia,” on Sept. 5, pointing out that Scalia gave a speech in January alluding to the Ninth Circuit decision as a prime example of how courts are misinterpreting the Constitution. At a Knights of Columbus rally in Fredericksburg, Va., the Catholic justice said framers didn’t intend to “exclude God from the public forums and from political life.” Newdow’s brief noted the “firestorm of controversy” erupting when the opinion was issued.

“The associated passions–though understandable–are the very reason we have an Establishment Clause, and, perhaps in this arena more than any other, it is essential that the judiciary present a neutral front.” The brief argues that statements and activities by Scalia call his impartiality into question. Newdow noted that Scalia’s decision to make these remarks to the Knights of Columbus is noteworthy because the group claims responsibility for leading the effort to insert the words “under God” into the pledge. Since Scalia made his statements, the Knights of Columbus has even submitted a brief urging the Supreme Court to overturn the Ninth Circuit. Scalia’s “voluntary, disapproving statements about the lower court’s ruling–in a case obviously destined to come before him–is at odds with the code of conduct for United States judges,” Newdow further noted.

Precedent has emphasized not the reality of bias but its appearance, he wrote. A survey released in August on the status of Pledge of Allegiance laws by the Education Commission of States documents that 35 states currently require schools to include recitation of the Pledge of Allegiance: Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Idaho, Illinois, Kansas, Maryland, Massachusetts, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Oregon, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Utah, Virginia, Washington, West Virginia, and Wisconsin.

At least ten states have a pledge for their state flag, but Texas this fall became the only state requiring students to recite it in school. On July 15, U.S. District Judge Robert F. Kelley ruled that Pennsylvania’s statute violates student’s First Amendment right to free expression. The court issued a permanent injunction against the Pennsylvania law. Colorado’s new law has been blocked by a temporary injunction issued by U.S. District Judge Lewis Babcock on Aug. 15.

The judge found that the new law discriminates against teachers because there is no provision for them to opt out, as there is for students. The judge criticized the law for pitting students who say the pledge against those who do not, as well as pitting students against teachers. “What is instructional about that?” Babcock asked.

He said the law could conceivably lead to suspensions for students and firings for teachers. The challenge was taken by the ACLU on behalf of nine teachers and students from four Denver-area districts. The injunction is in effect through the end of the 2004 legislative session at the request of the state attorney general’s office. The legislature is expected to amend the law to address some of the court concerns next year. In other developments, the U.S. House, by a 307-119 margin, passed an amendment in July by Rep. John Hostettler, R-IN, prohibiting enforcement of the Ninth Circuit pledge decision. That amendment was actually opposed by the Justice Department, which said such legislation could complicate the appeal. A second amendment, adopted by a 260-161 vote, prohibited use of federal money to enforce the 11th Circuit’s ruling against Judge Roy Moore. The intent was to bar the U.S. Marshals Service from enforcing either decision. “These amendments are essentially meaningless.

But these votes do show a shocking contempt by a majority in the U.S. House of Representatives–not just for the constitutional principle of separation of church and state, but for a free and independent judiciary,” said Anne Gaylor, president of the Freedom From Religion Foundation.

Freedom From Religion Foundation