Justices Keep 'Under God' in Pledge

The ruling did not reflect the judicial confidence with which the court has recently tackled such divisive issues as affirmative action in university admissions or Florida's disputed 2000 presidential election results. But it provided a way out of a case that had presented the justices, and the federal judiciary as a whole, with a series of quandaries, political and legal.

Ruling in favor of Newdow last year, the San Francisco-based U.S. Court of Appeals for the 9th Circuit cited a 1992 decision by the Supreme Court that said a rabbi's nonsectarian prayer at a public high school graduation violated the First Amendment clause that prohibits the establishment of an official religion -- because nonreligious students might feel psychological pressure to join in, even if not formally required to do so.

Though public school students have long been free to remain silent during the recitation of the pledge, the 9th Circuit Court ruled that since Newdow's daughter in elementary school had to choose between saying "under God" or risking ostracism by skipping it, his right as a father to instruct her in religious matters without state interference was violated.

Even some conservative legal analysts called the 9th Circuit's ruling a plausible reading of the Supreme Court's precedents. Indeed, in his concurring opinion yesterday, Thomas said that the 1992 ruling "would require us to strike down the pledge policy," which is why, he said, the 1992 precedent should be overruled.

Still, the 9th Circuit decision sparked a political uproar, as the ruling was denounced by the president and nearly the entire membership of Congress. All 50 state governments, the National Education Association and the National School Boards Association also weighed in at the court in favor of the existing pledge.

An April Gallup poll showed that 91 percent of the public wanted the pledge to remain as it is, while 8 percent wanted to see "under God" expunged.

Thus, the court was under intense pressure to uphold the pledge, but a satisfactory legal argument for doing so was not readily apparent.

Lawyers for both the Elk Grove schools and the Bush administration urged the justices to find that "under God" was not a religious affirmation, but, as the administration's brief put it, a simple acknowledgement of "the role that faith in God has played in the formation, political foundation, and continuing development of this Country."

But in the end, only Rehnquist and O'Connor adopted such an interpretation, in concurring opinions that referred to Newdow's suit as a bid for a "heckler's veto" over a widely accepted patriotic exercise.