WASHINGTON — Antonin Scalia will just be a spectator whenthe Supreme Court tackles the emotional Pledge of Allegiance casenext year, sidelined apparently by one man's questions about thejustice's impartiality.
The court, minus Scalia, said Tuesday it will decide if theregular morning classroom salute to the American flag isunconstitutional because of the reference to God.
Scalia did not explain why he will not take part in the mostwatched case of the term.
The announcement surprised court watchers and even MichaelNewdow, the California parent and atheist who wants the words''under God'' removed from the pledge. He sued on behalf of his9-year-old daughter and won.
Newdow asked Scalia to stay out of the case at the high courtbecause of comments the conservative justice made during a speechat a religious event. Scalia criticized the appeals court ruling inNewdow's favor.
''I think that was an amazingly courageous and upstanding thingfor him to have done. He was right to do it. I didn't expect thathe would,'' Newdow said.
Justices decide themselves whether they have personal orfinancial conflicts in cases, and they generally give noexplanation when they sit out a case.
Scalia's recusal makes a potentially close case even moretight.
The remaining eight justices could deadlock 4-4. That wouldaffirm the 9th U.S. Circuit Court of Appeal's ban on the religiousreference, which would apply to 9.6 million schoolchildren in thenine states the court oversees: California, Oregon, Nevada,Montana, Washington, Idaho, Arizona, Hawaii and Alaska, plusGuam.
''It makes our case more difficult,'' said Jay Sekulow, chiefcounsel of the American Center for Law and Justice, which issupporting the school district in the appeal. ''We've got to findthat fifth vote, and that fifth vote is not going to be JusticeScalia.''
Newdow called attention to Scalia's remarks in a court filing.He said Scalia violated conduct rules that prevent judges fromdiscussing the merits of cases during a speech at a ''ReligiousFreedom Day'' observance in January in Fredericksburg, Va.
The event was sponsored by the Knights of Columbus, a RomanCatholic men's service organization which campaigned in 1954 to addthe words ''under God'' to the Pledge of Allegiance.
Scalia said in the speech that courts have gone too far to keepreligion out of public schools and other forums, and that thePledge of Allegiance question would be better decided by lawmakersthan judges.
After the speech, the group Americans United for Separation ofChurch and State called on Scalia to recuse himself from the pledgecase and possibly other church-state cases.
''This seemed so over the top, to be this pointed and specificin criticizing a decision which you had every reason to believewould soon be on your plate,'' the Rev. Barry Lynn, the group'sexecutive director, said Tuesday.
Douglas Kmiec, a Pepperdine University constitutional lawprofessor and former legal adviser to Republican presidents, saidhe didn't think the remarks crossed the line, noting they weresimilar to Scalia's written observations. But he said Scalia'sabsence leaves the court in a bind.
''To the extent the court issues a muddled opinion, or worst ofall worlds a tied opinion ... they will be doing more damage bytaking the case than if they just left it alone,'' he said.
The justices will hear arguments and rule in the case nextyear.
Newdow, a doctor and lawyer representing himself in the case,hopes to argue the case but he must get special permission from thecourt.
The case is Elk Grove Unified School District v. Newdow,02-1624.
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