Justice Antonin Scalia at Religious Freedom Day in city Jan. 12. His remarks apparently led him to recuse himself from Pledge of Allegiance case. smc Visit the Photo Place

Scalia benched by remarks

Supreme Court Judge Antonin Scalia backs out from Pledge of Allegiance case because of comments made in Fredericksburg in January

By JESSICA ALLEN

Date published: 10/16/2003

Justice spoke of 'Pledge' case in Fredericksburg

Comments he made at a religious freedom ceremony in Fredericksburg apparently led Supreme Court Justice Antonin Scalia to recuse himself from deciding a major church-state case.

Scalia spoke during Religious Freedom Day on Jan. 12 and criticized court decisions in recent years that have outlawed expressions of religious faith in public events.

He used the Pledge of Allegiance court ruling by the 9th Circuit Court of Appeals as an example.

The U.S. Supreme Court announced Tuesday that it will consider the San Francisco case on whether the phrase "one nation, under God" in the pledge is unconstitutional.

Scalia did not explain why he recused himself from the case, but his absence sets up the possibility that the other eight justices could deadlock 4-4, a result that would allow the lower court decision to stand.

Scalia, whose son Paul is a priest at St. Patrick Catholic Church in Spotsylvania County, spoke at the Religious Freedom Monument on Washington Avenue as a guest of the Knights of Columbus, a Catholic men's organization.

Scalia said the nation's founding fathers acknowledged a sovereign God in establishing the government--as did the men who framed Virginia's statute in Fredericksburg in 1777. That statute served as the model for the First Amendment to the U.S. Constitution.

"Separation of church and state was not our tradition until later," Scalia said.

After learning of Scalia's comments, plaintiff Michael Newdow filed a motion that Scalia be removed from deciding the case. Newdow stated that Scalia violated the code of conduct for United States judges, which says that "a judge should avoid public comment on the merits of a pending or impending action."

Newdow wrote in his motion: "His conscious decision to appear as the 'featured speaker' at an event sponsored by the Knights of Columbus--the religious organization that initiated the drive to place 'under God' into the Pledge--and to use that forum to decry the Ninth Circuit's ruling is of enormous moment."

Lewis P. Fickett Jr., a retired Mary Washington College professor who has studied the Supreme Court, said Scalia made the right decision in stepping down.

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Date published: 10/16/2003