The Court specified the questions to be briefed. The second question seems to me to at least raise the possibility that the emphasis in a decision could be on the fact that the policy has teachers leading the pledge, rather than simply on the addition of the words "under God" to the statute. And there is also the standing question. Here is the cert. grant:
The petition for a writ of certiorari is granted limited to the following Questions: 1. Whether respondent has standing to challenge as unconstitutional a public school district policy that requires teachers to lead willing students in reciting the Pledge of Allegiance. 2. Whether a public school district policy that requires teachers to lead willing students in reciting the Pledge of Allegiance, which includes the words "under God," violates the Establishment Clause of the First Amendment, as applicable through the Fourteenth Amendment. The Solicitor General is invited to file a brief in this case on behalf of the United States. -----Original Message----- From: Bill Funk <[EMAIL PROTECTED]> Sent: Oct 14, 2003 2:46 PM To: [EMAIL PROTECTED] Subject: Re: Justices Take Case on Pledge of Allegiance's 'God' Reference Even without Justice Scalia on the panel, the pressure on the Court to reverse the 9th Circuit will be intense, and I cannot forget Justice Stevens dissent in Texas v. Johnson, referring to the "intangible dimension" of the case that would make normal First Amendment rules inapplicable. Nevertheless, it is my hope that the Court will, as it did in the flag burning case, get it right and apply the text and purpose of the Establishment Clause to find Congress's addition of the words "under God" in 1954 unconstitutional. First, while this case arises in a state context, the addition of the words "under God" were made by a statute passed by Congress, the core concern of the First Amendment. Second, while adding such words may not directly "establish" religion, the law is "respecting an establishment of religion." The law declares that the official pledge of allegiance to the United States requires a recognition that the nation is "under God," which logically requires an affirmance that God exists and that the nation is subject to God's will and law. In other words, to pledge allegiance to the United States in the only way recognized by the United States, one must state that he/she believes in God and believes that the nation is subject to God's law and will. Were such a statement required as a qualification to any office of the United States, it would almost assuredly violate the religious test prohibition in Article VI. Thus, although we cannot require such a statement of a candidate for national office, those who would uphold the addition of the words "under God" in the pledge would require it from anyone who wishes to pledge allegiance to the nation. To require a person to confess to religious beliefs in order to pledge allegiance to the nation is the essence of "establishment." Moreover, the allowance of an "affirmation," in lieu of an "oath," to support the Constitution in Article VI (the Constitutionally required pledge of allegiance), was specifically included to allow such a pledge to be made without invoking the name of the deity. Third, the history of the addition of the words "under God" reveals the intent of Congress to declare by law that there is an identity between this nation's goals and ideals and the will of God, an identity more recently expressed by Chief Justice Moore in Alabama in explaining his reason for placing the 10 Commandments in the rotunda of the state Supreme Court building. To declare such an identity by law is the epitome of "establishment." Anyone who wishes may say the words "under God" between "one nation" and "indivisible," but for Congress to require those words as a condition to pledging allegiance to the nation is unconstitutional. Bill Funk Lewis & Clark Law School Steve Wermiel
