WASHINGTON, Oct. 14 (UPI) -- The Supreme Court said Tuesday it would hear argument this term on whether the phrase "under God" should be part of the Pledge of Allegiance.
The justices limited argument to two questions: Whether the challenger had "standing" -- whether a non-custodial California parent could show he was harmed by the phrase, or represented his school-age daughter -- and whether asking school children to voluntarily recite the pledge with the phrase "under God" violates the First Amendment's ban against the government establishment of religion.
If the justices determine that the answer to the first question is "no" -- that challenger Michael Newdow does not have standing -- it's probable that they will not rule on the constitutionality of the phrase.
Another surprise aspect of the case is that Justice Antonin Scalia, the court's most dependable conservative, has withdrawn from consideration of it.
Newdow had asked Scalia to recuse himself because the justice had supported the inclusion of the phrase in a speech, indicating he had pre-judged the issue. However, the Supreme Court gave no explanation for Scalia's withdrawal Tuesday.
The phrase was successfully challenged in the lower federal courts by the California man acting on behalf of his daughter. Newdow contended that Congress violated the constitutional separation of church and state by inserting the phrase in the 1950s.
The lower court ruling was stayed pending action in the Supreme Court.
The Supreme Court did not grant review in a petition filed by U.S. Solicitor General Theodore Olson. However, it did grant a separate petition filed by a California school district and invited the Justice Department to file a supporting brief.
In a statement accompanying the filing of the department's petition, Attorney General John Ashcroft said, "Two decisions of the Supreme Court have said without qualification that the pledge is constitutional. No justice has expressed any other view. Schools across America, and hundreds of thousands of school children, have relied on the Supreme Court's repeated assurances as they have started their day with the pledge."
The attorney general said, "The Justice Department will vigorously defend our nation's heritage and our children's ability to recite the pledge."
Congress first enacted the pledge in 1942. The pledge had been substantially written by a Baptist minister in 1892. The minister, Francis Bellamy, professed Christian socialist political leanings but believed children should express patriotism for their country and flag.
In 1954, during the height of the Cold War, Congress added the phrase "under God" to the pledge.
California law requires state schools to begin each day with "appropriate patriotic" exercises, and specifies that the pledge fulfills that requirement.
Newdow, who lives in the Sacramento, challenged the phrase in March 2000 on behalf of his daughter by filing suit against the president, Congress, the United States and two state school districts, including the Elk Grove Unified School District.
A federal judge dismissed the complaint and a divided panel of the U.S. Court of Appeals for the 9th Circuit removed the federal defendants from the suit.
But the panel reversed part of the judge's ruling, saying that Newdow and his daughter both had standing to challenge the Elk Grove practice of reciting the pledge each morning.
The panel also ruled 2-1 that the phrase "under God" violates the First Amendment's guarantee that government make no law establishing or inhibiting religion.
While the case was pending, the mother of Newdow's daughter informed the appeals court that he did not have custody of the child. The panel then further ruled that Newdow had the right to challenge the phrase on his own.
After a rehearing by the full appeals court largely produced the same result, the Justice Department and the school district asked the Supreme Court to intervene.
In its petition, the Justice Department said at least two previous decisions by the Supreme Court have indicated that the pledge was constitutional in its entirety.
The Supreme Court "has repeatedly refused to 'press the concept of separation of church and state to extremes,'" the petition said in part.
Though not yet scheduled, the case is expected to be heard by the Supreme Court -- minus Scalia -- sometime this winter.
(Elk Grove Unified School District vs. Newdow et al.)