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'Under God' Stays in Pledge As Supreme Court Throws Out Atheist's Challenge

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The U.S. Supreme Court has given the nation's public schools the green light to keep "under God" in the Pledge of Allegiance—at least for now—by holding that a California father lacked the legal standing to challenge a California school district's policy of leading children in the pledge.

Five of the eight participating justices concluded that because Michael A. Newdow did not have the legal right to represent his daughter's interests in court, he could not challenge the pledge policy of the Elk Grove Unified School District.

Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor and Clarence Thomas wrote opinions saying that Dr. Newdow did have standing, and that they would have ruled the school district's pledge policy does not violate the U.S. Constitution's prohibition of government-established religion.

But because the rest of the participating justices agreed with Justice John Paul Stevens's opinion confining the decision to the issue of standing, the ruling appears to leave the door open to similar legal challenges in the future.

"Because they decided it on this procedural standing issue, it's definitely a question that could come up again," said Naomi E. Gittins, a senior staff lawyer with the National School Boards Association. "It's only a temporary all-clear for school districts."

Writing for the majority in Elk Grove Unified School District v. Newdow (Case No. 02-1624), Justice Stevens suggested that Dr. Newdow's standing had been fatally flawed by an ongoing custody dispute with his daughter's mother—a Christian who says the girl has no problem saying the current pledge and could be harmed by being associated with the suit.

After a state family-court judge decided that Dr. Newdow—a physician who also has a law degree—could no longer press the case on his daughter's behalf because of the mother's objections, a federal appeals court held that he had standing on his own behalf. The Supreme Court majority disagreed.

"In our view, it is improper for the federal courts to entertain a claim by a plaintiff whose standing to sue is founded on family-law rights that are in dispute when prosecution of the lawsuit may have an adverse effect on the person who is the source of the plaintiff's claimed standing," Justice Stevens wrote.

But Chief Justice Rehnquist excoriated that reasoning in an opinion joined by Justices O'Connor and Thomas, who each wrote separately to lay out reasons for considering classroom recitations of the pledge constitutional.

Chief Justice Rehnquist said the Supreme Court should have deferred to the federal appeals court on the question of standing, and then tackled the church-state issue head-on. If the high court had done so, then Elk Grove Unified's policy should have been fully vindicated, the chief justice argued.

"Reciting the pledge, or listening to others recite it, is a patriotic exercise, not a religious one," he wrote. "[P]articipants promise fidelity to our flag and our nation, not to any particular God, faith, or church."

Flag Day

In timing that seemed more than coincidence, the court issued its ruling on June 14, not only Flag Day but also 50 years to the day after Congress passed an act adding the phrase "under God" to the pledge.

In a 1943 ruling in West Virginia State Board of Education v. Barnette, the high court had established that schools cannot compel students to recite the pledge.

Still, Dr. Newdow contended, youngsters are subtly coerced to say the pledge. He argued in legal papers and in an impassioned oral argument before the high court in March that he was harmed each time the school his 4th grade daughter attended was asked to recite the pledge.

Lawyers for the 55,000-student Elk Grove district were joined in their defense of the current pledge by the Bush administration. Both stressed that "under God" reflected the nation's religious heritage and should not be seen as a prayer.

A divided three-judge panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, had agreed with Dr. Newdow, finding that schools impermissibly endorse monotheism when teachers lead students in the pledge. The 2-1 ruling, which was initially issued in 2002 and then revised in February 2003, found that Dr. Newdow had a right to be free from government inculcation of his daughter with religious dogma with which he disagreed.

But in the Supreme Court's ruling, Justice Stevens wrote that Sandra Banning, the mother of Dr. Newdow's daughter, had the final say in matters pertaining to her education and welfare.

"He wishes to forestall his daughter's exposure to religious ideas that her mother, who wields a form of veto power, endorses, and to use his parental status to challenge the influences to which his daughter may be exposed in school when he and Banning disagree," Justice Stevens wrote.

But Dr. Newdow does not have "a right to dictate to others what they may and may not say to his child respecting religion," the justice continued.

Justice Stevens said in his opinion that family issues have long been regarded as the legal province of the states, and that "in general, it is appropriate for the federal courts to leave delicate issues of domestic relations to the state courts."

He said that the extent of the problem of legal standing raised by the custody issues in Dr. Newdow's lawsuit was not apparent until August 2002, when Ms. Banning filed a motion in the case to intervene or have the complaint dismissed following the 9th Circuit court's initial decision in the case.

"When hard questions of domestic relations are sure to affect the outcome, the prudent course is for the federal court to stay its hand rather than reach out to resolve a weighty question of federal constitutional law," Justice Stevens wrote.

He was joined in the opinion by Justices Anthony M. Kennedy, David H. Souter, Ruth Bader Ginsburg, and Stephen G. Breyer. Justice Antonin Scalia took no part in the case, after Dr. Newdow asked that he recuse himself because of public comments the justice had made criticizing the 9th Circuit court's decision.

For her part, Justice O'Connor said she wished the court had gone further and decided the case on its merits.

"Certain ceremonial references to God and religion in our nation are the inevitable consequence of the religious history that gave birth to our founding principles of liberty," she wrote. "It would be ironic indeed if this court were to wield our constitutional commitment to religious freedom so as to sever our ties to the traditions developed to honor it."

'Sigh of Relief'

After Monday's ruling, Elk Grove Superintendent David W. Gordon said the district was "very pleased" that its students "will be able to continue to recite the Pledge of Allegiance with the words 'under God' as they have for 50 years."

"While we would have preferred that the Supreme Court had ruled on the merits—and settled it once and for all for our nation—we are pleased that we can continue with our board policy," Mr. Gordon said in a statement.

Ms. Banning said that she and her daughter were also pleased.

"My daughter gave a sigh of relief this morning that—for her—this matter is over," she said.

Kenneth W. Starr, the prominent Washington lawyer who represented Ms. Banning in a written brief before the high court, called Monday's ruling "an enormous victory for our nation's traditions."

"The 9th Circuit's decision has been unanimously reversed, and there should be little doubt that the Pledge is safe and secure," he said.

Meanwhile, a group that had sided with Dr. Newdow, Americans United for Separation of Church and State, voiced disappointment that the justices had "ducked" the establishment clause issue, but predicted it would resurface.

"Students should not feel compelled by school officials to subscribe to a particular religious belief in order to show love of country," said the Rev. Barry W. Lynn, the executive director of the Washington-based organization. "America is increasingly diverse in matters of religion, and our public schools should reflect that diversity."

Charles C. Haynes, a senior scholar at the First Amendment Center at the Freedom Forum in Arlington, Va., said the high court's decision virtually guaranteed that the pledge's constitutionality would continue to be fought out in the courts.

"What this decision means is that we will continue to have lawsuits challenging 'under God' in the pledge and other references to God in the money and other aspects of our public life," he said.

He said he suspected, though, that many educators were relieved by the ruling.

"This is so emotional for so many Americans," Mr. Haynes said. "It's just another way in which schools have been turned into a battleground, and for teachers and administrators that's just a nightmare that they don't need. I think among school board members and other school folks, there's a sigh of relief that they won't have to juggle this hot potato anymore."

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