he nation's highest court returned to work last week following a late-summer recess, and promptly announced that it would not take up a challenge from a Washington State school district which had denied access to school facilities to a student Bible club.

   Other important cases still remain in the front of the court, including one that challenges the constitutionality of a state statute barring the use of public money for scholarships or other financial assistance to those studying for a religious ministry or priesthood. The justices may also seek to avoid an even more contentious and politically-charged appeal, though, from California physician and Atheist Michael Newdow, who argues that the inclusion of the words "under God" in the Pledge of Allegiance violate the First Amendment separation of church and state.

   The court term began on the traditional "first Monday," but only six of nine justices appeared for the opening which included the induction of lawyers into the prestigious Bar of the Supreme Court , as well as a handful of legal announcements. No arguments took place, though, in deference to the Jewish Yom Kippur holiday. It was the first time in the court's history that the annual term ordered by Congress to commence on the "first Monday in October" did not include formal arguments and hearings. In 1993, the court suspended arguments when Yom Kippur fell on the first Wednesday of October. Three justices, Ginsburg, Breyer and Chief Justice Rhenquist (recovering from back surgery) were all absent. But the court had opened on schedule and heard cases on the "first Monday."

   This year's break from tradition was made, according to court spokesperson Kathy Arberg, "so that Yom Kippur may be observed."

   In covering this departure from the "first Monday" tradition, the Jerusalem Post observed: "According to a clerk of Justice Felix Frankfurter in the mid-1940s, Louis Henkin, such deference (to a religious holiday) was unimaginable in the time of Frankfurter, a Jewish justice who served on the court from 1939 to 1962."

   Henkin said that Jews were just happy to hold any position of employment within the Supreme Court, and according to the Post, "would never have dreamed" of taking the day off for religious observance.

   "Things have changed," Henkin, a Sabbath-observant Jew, told the Post. "Religious demands have become more open, more insistent."

   Despite the unusual accommodation of a religious festival, though, the justices did announce that they would not hear a challenge to a U.S. Ninth Circuit Court of Appeals ruling (PRINCE v. JACOBY) involving a student Bible club at Spanaway Lake High School in Washington state. In 1998, Tausha Prince, then a sophomore, filed a complaint arguing that in denying an application by the "World Changers" Bible club, the school district and State of Washington were establishing a two-track system that discriminated against religious groups. This included access to funds provided to student organizations, as well as announcements of club activities over the school's public address system, a spread in the year book and other publicity. The U.S. 9th Circuit, reversing a lower court dismissal of the case, ruled that the club should be given parity with other student associations and permitted access to school space and supplies.

   The high school set aside class time each morning where students could choose to receiving special instruction, attend assemblies or meetings of school-approved clubs, or do homework. The district's lawyer noted, "No other court has ever held that religious clubs have the right to meet in a public school during instructional time when attendance is mandated."

   Attorneys for the American Center for Law and Justice, a religious advocacy law group organized by televangelist Pat Robertson, argued that the school violated Ms. Prince's freedom of speech and religion, along with portions of the 1984 Equal Access Act. That statute banned public schools receiving federal funds from excluding religious or other extracurricular student organizations if they allow others. The district responded that it could not legitimately establish a special category of student religious groups like the "World Changers," which required members to pledge to "Evangelize our campus for Jesus Christ" and to "teach students that Jesus Christ is the Answer to the confusion, pain and uncertainty this world offers."

   The justices will take up DAVEY v. LOCKE, a case touching on the limits of state funding for religious groups, training and other activities. Any decision could also affect over three-dozen state constitutions which have so-called "Blaine Amendments" that prohibit the use of public funds to benefit religious institutions. Fifteen states have explicit constitutional provisions banning such public funding for theology classes. Another consequence of a high court ruling in DAVEY may be the fate of voucher programs throughout the nation, where governments provide grants or "scholarships" to parents seeking to send their children to private and religion-affiliated schools.

   In August, 2000 Joshua Davey, a freshman at the Northwest College in Kirkland, Washington, received a "Promise Scholarship" grant from the state. The school is affiliated with the Assemblies of God denomination. Two months later, the financial director at Northwest received word from John Klaeik, associate director of the state Higher Education Coordinating Board warning that students like Davey pursuing religious degrees were not eligible for public assistance.

   "Although the Appropriations Bill creating this program (Promise Scholarships) is silent on the issue, the State Constitution is clear regarding the separation of church and state," Klaeik wrote. "We have consistently interpreted this constitutional provision as prohibiting state financial aid funds for students who are pursuing a degree in theology."

   The Washington State Constitution requires: "No public money or property shall be appropriate for or applied to any religious worship, exercise, or instruction."

   Citing "sincerely held religious beliefs," Davey refused to select a new major -- a step that would have permitted him to receive the "Promise Scholarship" -- and instead sought assistance from Robertson's law group. ACLJ then filed a 14-page complaint in federal court charging that the Washington state provision violated not only Mr. Davey's right to free exercise of religion, but also the establishment clause of the First Amendment. ACLJ also argued that the policy of not funding divinity training was "hostile toward religious students," since Davey -- in order to obtain the scholarship funding -- would have to "give up his religious belief (that he should) study theology."

   The suit added that the establishment clause of the First Amendment "affirmatively mandates that Defendants (State of Washington officials) cannot treat Mr. Davey as a second-class citizen merely because is pursuing his religious conviction to study theology."

   But supporters of the Washington Constitution provision say that this "Blaine Amendment" and similar statutes in other states insulate Americans from having to support religious practices and institutions they may find objectionable.

   "If the high court rules in favor of Mr. Davey, that means that every Atheist in the State of Washington will have his or her tax money used to support religious training," warned Ellen Johnson, President of American Atheists. "This is precisely what our constitutional separation of church and state was designed to avoid, the requirement that Americans pay a 'religious levy' to support the churches."

   Others say that state aid to train priests, ministers and other religious professionals could result in an unhealthy entanglement between government and religion that could compromise the independence of churches.

   Washington's senior attorney general said that the state provisions helps to "provide a wall of separation of church and state."

   Court watchers may find a hint of the upcoming decision in DAVEY v. LOCKE in a 1986 case where the justices reversed a Washington court decision. A blind student at a private Christian college in Washington sued officials after he was denied financial assistance under a state vocational rehabilitation program because he was studying for the ministry. The state court ruled that the state constitution barred aid "to a person studying to be a pastor, missionary, or church youth director..."

   The U.S. Supreme Court, however, unanimously ruled against the lower court maintaining that the state funds were not intended to advance or promote religion, but merely assist disabled students.

   "The program is in no way skewed towards religion and creates no financial incentive for students who undertake sectarian education," wrote then-Justice Thurgood Marshall in WITTERS v. WASHINGTON DEPARTMENT OF SERVICES FOR THE BLIND. "On the contrary, aid recipients have full opportunity to expend vocational rehabilitation aid on wholly secular education, and as a practical matter have rather greater prospects to do so."

   The decision is DAVEY could affect a range of federal programs, from vouchers to the faith-based initiative. Supporters of Mr. Davey say that the "Blaine Amendment" in Washington state and elsewhere constitute an impediment to equal access and relegate religious believers to the status of second-class citizens. Separationists, though, argue that no American should be compelled to support through their tax money any church or other religious establishment.

   The most controversial case that could end up on the Supreme Court's docket involves the constitutionality of the phrase "under God" in the Pledge of Allegiance.

   In terms of its legal, political cultural ramifications, NEWDOW v. US (No. 02-1574) could have as wide an impact as the historic Supreme Court cases of the early 1960s (ENGEL v. VITALE, ABINGTON TOWNSHIP v. SCHEMPP and MURRAY v. CURLETT) which reined in government-sponsored sectarian prayer and other religious ritual in the public school classrooms.

   Michael Newdow, a California physician and Atheist, filed a lawsuit in California federal court arguing that the use of the words "under God" established a monotheistic religion and thus violated the First Amendment. Congress had passed a federal law in 1954 inserting the controversial phrase after the American Legion, the Roman Catholic Church and other religious groups launched a campaign to "religionize" the secular pledge. Newdow also argued that a state law mandating teachers to lead their classes in the Pledge of Allegiance at the start of the regular school day violated the rights of students, specifically his daughter.

   ;Controversy erupted when to the surprise of many, the Ninth Circuit agreed to hear the case, and a three-judge panel voted 2-1 in favor of Newdow. A public outcry followed, and the suit has reignited a debate over the reach of federal courts and the role of religion in the public square. While Newdow has become a favorite within the nonbeliever community, some Atheists and Freethinkers are distressed that he seems to be basing much of his case on "religious rights" by now identifying himself as a self-styled minister of the First Amendment Church of True Science (FACTS).

   Should Newdow prevail, the constitutionality of other widespread government practices could be called into question. Separationists have argued against everything from the wording of the Pledge to the inclusion of "In God We Trust" on money and its replacement of the original national motto, "E Pluribus Unum" or "Out of Many, One." Supporters of the present pledge argue that these symbols and practices reflect the nation's profound religious heritage, while others say they are simple examples of a benign "civic religion" which the courts should ignore.

   With remarkable alacrity, Congress has weighed in on the pledge issue with a flurry of high-profile resolutions and more disturbing bills that seek to amend the U.S. Constitution in order to permit everything from the display of the Ten Commandments on government property to the recitation of "under God." The Bush Administration and Attorney General John Ashcroft urged the high court to hear the case. Should it ignore the Newdow appeal, that could mean that the states under the jurisdiction of the U.S. Ninth Circuit Court may be banned from trying to compel youngsters to recite the "under God" pledge. But Circuit Court justices, in turning down an effort to re-hear NEWDOW, stopped short of declaring the 1954 law to be unconstitutional.

   There are already indications, though, that the Supreme Court justices are looking for a way to avoid the case, and perhaps prod the Ninth Circuit into a different position. A report last week carried by Associated Press noted, "Many lawyers and law professors who follow the court predict the justices will try to resolve the pledge issue as quietly as possible, without hearing the merits of the case. For example, the justices could reverse the decision on procedural grounds, or send it back to a lower court."

   AP added that hearing the case as a pivotal constitutional test "could open up a can of worms the court probably prefers to keep capped for now." Steven Shapiro, a legal counsel with the ACLU, said, "It will put the court right back in the middle of the culture wars which, I suspect, is where they do not want to be."

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