On the Docket: Church-State Case, Political Battles ; the Supreme Court's New Term, Starting Monday, Could Be Historic If It Takes a Pledge of Allegiance Dispute

By Warren Richey writer of The Christian Science Monitor | The Christian Science Monitor, October 6, 2003 | Go to article overview

On the Docket: Church-State Case, Political Battles ; the Supreme Court's New Term, Starting Monday, Could Be Historic If It Takes a Pledge of Allegiance Dispute


Warren Richey writer of The Christian Science Monitor, The Christian Science Monitor


Eleven years ago, the US Supreme Court struck down as unconstitutional the offering of a prayer at public high school graduation ceremonies. At the time, Justice Antonin Scalia complained in a dissent that the majority's reasoning could render the Pledge of Allegiance vulnerable to similar attack as an impermissible establishment of religion under the First Amendment.

"Since the Pledge of Allegiance has been revised ... to include the phrase 'under God,' recital of the Pledge would appear to raise the same establishment clause issue as the invocation and benediction [struck down in the graduation case]," Justice Scalia wrote in 1992. "Must the Pledge therefore be barred from the public schools?"

Now, more than a decade later, Scalia's question is at the heart of a case that could immediately elevate the Supreme Court's current term, which begins Monday, into a historic session.

The court has not yet said whether it will take up a California case challenging the constitutionality of the Pledge in public schools. But an announcement could come as early as Monday.

"If the court takes [the Pledge case] on the merits, it will dwarf anything else the Supreme Court will do this year," says Steven Shapiro, legal director of the American Civil Liberties Union.

As the nation's highest court begins its new term, legal analysts say the court's docket already includes a number of potentially important cases. Among them are disputes that could reshape how American elections are financed, how election-district boundary lines are drawn, and how criminal suspects are interrogated.

Legal scholars will be watching to see if the court's conservative wing continues to push its federalism revolution by aggressively policing the balance of power between states and the national government. They will also pay careful attention to how the justices respond to alleged violations of civil liberties in the war on terrorism.

Despite the potential for blockbuster cases dealing with the Pledge of Allegiance or terrorism, at least so far, legal analysts say, there are no mega-cases on the court's docket that might rise to the level of last year's landmark affirmative-action and gay rights decisions.

"This is looking like something of a breather term compared to last term," says Christopher Landau, a Washington lawyer and former law clerk to Justices Scalia and Clarence Thomas.

But with roughly one-third of the docket yet to be filled and no shortage of legal controversies in the nation, such assessments could change in an instant.

Among the more important cases already on the docket is a church- state dispute from Washington State involving a lawsuit challenging the state's refusal to provide public scholarship money to those studying to join the clergy. …

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