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Published: Monday, 10/27/2003

Fallout in Pledge of Allegiance case to hit Toledo

BY DALE EMcH
BLADE STAFF WRITER

Hands over their hearts, solemn expressions on their faces, a group of Sherman Elementary School students recited the Pledge of Allegiance over the building's intercom system.

“I pledge allegiance to the flag ...”

On they went, rhythmically chanting the words. “One nation, under God ...,” they said without pausing and seemingly without thought.

Although the kids might not have been thinking about the words “under God,” a lot of other people are. Next year, the U.S. Supreme Court will rule on whether it's constitutional for schoolchildren to say those words in a case that represents America's latest struggle over just how separate the separation of church and state should be.

“It walks the line between ceremonial deism and an actual endorsement of religion,” said Raymond Vasvari, legal director of the ACLU Foundation of Ohio and an opponent of having “under God” remain in the Pledge of Allegiance.

The case started in California when Michael Newdow, a doctor with a law degree, complained about a requirement that schoolchildren recite the pledge each day. Last year, the U.S. 9th Circuit Court of Appeals agreed with Mr. Newdow that a policy of making students recite the words “under God” is unconstitutional because it violates the Establishment Clause of the First Amendment.

If the Supreme Court agrees with the California-based federal court, it would be unconstitutional to require schoolchildren in Toledo and across America to pledge allegiance to one nation under God.

William Colon, principal at Sherman Elementary, said children who have issues with saying the Pledge don't have to recite it with the class. He doesn't understand the problem with the nondenominational phrasing of “under God.”

“It says `under God,' but it doesn't say which god,” Mr. Colon said. “When they're saying the Pledge, they're saying it to their God. I think the only people who could have a beef are the atheists.”

Or perhaps people who believe strongly in a strict separation of church and state.

The federal circuit court in California said that a policy of having schoolchildren say the country is a nation under God is an establishment of religion and coerces children to participate in that religious statement.

“A profession that we are a nation `under God' is identical, for Establishment Clause purposes, to a profession that we are a nation `under Jesus,' a nation `under Vishnu,' a nation `under Zeus,' or a nation `under no God,' because none of these professions can be neutral with respect to religion,” the court's opinion stated.

David Goldberger, a constitutional law professor at Ohio State University's law school, said there are two ways to look at the issue. One is that the language in the Pledge requires a statement of allegiance to a nation governed by a deity. The other is that it's simply a ceremonial statement, roughly equivalent to having “In God We Trust” on money.

“It's not a silly position that the Ninth Circuit has taken,” Mr. Goldberger said. “The question is whether it's right in light of current Establishment Clause jurisprudence.”

In key Establishment Clause cases that are relatively recent, the Supreme Court has said it's unconstitutional to have student-led prayers over loudspeakers before football games, for prayers - even those that are nondenominational - to be given at graduation ceremonies, and for certain religious symbols such as the manger scene from Jesus' birth to be displayed in a government building.

But the Supreme Court also has upheld the tradition of opening the Nebraska state legislature with a prayer because, in part, it was a historical practice.

The age of the schoolchildren required to say the Pledge of Allegiance in California was an important factor in the federal court's decision. The court said that like prayer at a graduation ceremony, the Pledge “places students in the untenable position of choosing between participating in an exercise with religious content or protesting.”

Mr. Vasvari of the ACLU thinks the federal jurists got the decision right. He said schoolchildren are a captive audience subject to group pressure to participate. He also said that the argument that “under God” is harmless tradition is insulting to religion. Treating the words if they're “all so much show” minimizes their importance to some people, he said.

It wasn't until 1954 that “under God” appeared in the Pledge of Allegiance. The words were inserted by Congress during the Cold War against communism. When signing the act into law, President Eisenhower said that schoolchildren would proclaim “the dedication of our Nation and our people to the Almighty.”

Tony Hileman, executive director of the American Humanist Association in Washington, said the country should revert to the pre-1954 version of the Pledge. Children who don't share a belief of a nation under God would have a hard time not participating, he said.

“It's very difficult for children to take that stand,” said Mr. Hileman, whose organization is primarily composed of atheists. “The effect is coercion that they recite the Pledge as it is.”

Dale Wiltse, principal of Highland Elementary School in Sylvania, said children at his school are pretty vocal about expressing their views when their religious beliefs conflict with a school event. For example, when school cookouts are held, some students who don't eat certain types of meat for religious purposes aren't shy about bringing in something else to cook on the grill.

So, if a student had a problem with saying the Pledge of Allegiance, he thinks he'd hear about it and be sensitive to their views.

“These little kids just come out and tell you everything. They'll tell you, `I can't do that,'” Mr. Wiltse said. “I hope we're open enough to the needs of most children, that we don't make them feel [coerced].”

Whether schoolchildren across the country are placed in that position is in the hands of the Supreme Court, which could hear arguments in the case early next year. Mr. Goldberger said predicting what the court will do is difficult, especially because Justice Antonin Scalia, a conservative voice, has recused himself because of public comments he has made about the Pledge indicating the legislative arm of government ought to decide whether the Pledge should continue - not the courts.

“I will be very surprised if the case is upheld by the Supreme Court,” he said. “The thing that adds uncertainty to the situation is that Justice Scalia had to recuse himself. So if the court splits 4-4, the opinion stands.”



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