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Published in Print: June 23, 2004, as Pledge Stays Intact as Justices Dismiss Atheist’s Challenge

Pledge Stays Intact as Justices Dismiss Atheist’s Challenge

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The fiery California atheist who last week lost his bid at the U.S. Supreme Court to get "under God" stricken from the Pledge of Allegiance vows to continue the fight with new plaintiffs, preferably in cases against school districts all over the country.

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Read excerpts from the Supreme Court opinions, "In the Court's Words."

"This case will be back," said Michael A. Newdow, an emergency-room physician with a law degree who represented himself before the Supreme Court in the high-profile case against the Elk Grove, Calif., school district.

Dr. Newdow had argued, and a federal appeals court had agreed, that the district was unconstitutionally exposing his now-10-year-old daughter to religious dogma during the daily classroom ritual of pledging allegiance to the American flag.

Michael A. Newdow reacts last week after the U.S. Supreme Court dismisses his challenge to the Pledge of Allegiance.
—Rich Pedroncelli/AP

But in a ruling handed down on Flag Day—50 years to the day after Congress added "under God" to the pledge—a five-justice majority of the court held that Dr. Newdow lacked the legal standing to bring the case because of complications arising from his bitter custody battle with the girl’s mother.

The June 14 decision overturned a highly controversial ruling by a San Francisco-based federal appeals court that would have barred public schools in nine Western states from leading the pledge because of the words "under God."

That ban by the U.S. Court of Appeals for the 9th Circuit was put on hold as the case proceeded to the high court. Although the appeals court had not specified how schools in the region should respond, the ruling had raised concerns that they would need to either drop the pledge or recite a truncated version of it.

Last week’s ruling removes that specter for the moment. But because the majority opinion did not address the merits of the church-state complaints against the pledge, it left the door open for 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."

Custody Complications

Temporary it will be, if Dr. Newdow has his way. He said in an interview last week that he had heard from people around the country asking him for help in pressing challenges to the pledge.

The head of a group that supported Dr. Newdow’s suit, the Washington-based Americans United for Separation of Church and State, reported similar contacts from would-be plaintiffs.

"We are talking to them," said the Rev. Barry W. Lynn, the group’s executive director. "We have not made any decision."

For his part, Dr. Newdow said he would be inclined to help such plaintiffs, even though to date he has not represented clients in any legal actions other than his own.

"I’ve done all the work. If they want me to, I’ll be happy to do it again," he said. "As long as the Constitution is being violated, I will keep fighting."

Whether the U.S. Constitution’s prohibition of a government establishment of religion is indeed violated by teacher-led recitations of the pledge is a question on which five of the eight justices who took part in the case chose to remain silent.

The three other justices agreed that the 9th Circuit court’s decision should be reversed, but on grounds that the current pledge is constitutional, not because of the issue of standing. The ninth justice, Antonin Scalia, recused himself from the case because of public criticism he had voiced about the 9th Circuit court’s decision before the case reached the high court.

Writing for the majority in Elk Grove Unified School District v. Newdow (Case No. 02-1624), Justice John Paul Stevens said Dr. Newdow’s standing had been compromised in part because his daughter’s mother is a Christian who says the girl has no problem with the current pledge and could be harmed by being associated with the lawsuit.

Because of those objections, a state judge had ordered Dr. Newdow to stop including his daughter in the case. Although the parents share custody of the girl, the judge gave her mother final say in decisions concerning the child’s health, education, and welfare.

The case "implicates the interests of a young child who finds herself at the center of a highly public debate over her custody, the propriety of a widespread national ritual, and the meaning of our Constitution," Justice Stevens wrote.

Unlike other cases brought by parents, he added, "the interests of this parent and this child are not parallel, and indeed, are potentially in conflict."

Federal courts are better off leaving it up to state courts to handle cases that raise such "delicate issues of domestic relations," Justice Stevens wrote.

"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," his opinion says.

He was joined by Justices Anthony M. Kennedy, David H. Souter, Ruth Bader Ginsburg, and Stephen G. Breyer.

‘Fidelity to Our Flag’

In three separate opinions, Chief Justice William H. Rehnquist and Justices Sandra Day O’Connor and Clarence Thomas laid out different reasons for concluding that public schools are on solid ground with the pledge.

In an opinion joined by those other two justices, Chief Justice Rehnquist said the high court should have deferred to the federal appeals court’s finding that Dr. Newdow did have standing to pursue his challenge. But on the merits, he argued, the Elk Grove Unified School District’s policy should have been fully vindicated.

"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."

Justice O’Connor said she considered it "a close question" whether the pledge is among an array of "ceremonial references to God" that do not constitute a state endorsement of religion. She concluded, though, that it is.

Although she called Dr. Newdow’s case "well-intentioned," she said that "nearly any government action could be overturned as a violation of the establishment clause if a ‘heckler’s veto’ sufficed to show that its message was one of endorsement."

Moreover, she said, "students who wish to avoid saying the words ‘under God’ still can consider themselves meaningful participants in the exercise if they join in reciting the remainder of the pledge."

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

Taking a sharply different tack in his own opinion, Justice Thomas said that the pledge should actually be declared unconstitutional if the high court were to adhere faithfully to its own precedents, especially the 1992 Lee v. Weisman decision that a rabbi-led prayer at a public school graduation ceremony violated the establishment clause.

But Justice Thomas said that the prayer ruling was dead wrong, and so the pledge, too, should be considered well within constitutional bounds.

Whether the remaining justices’ views on the constitutionality of the pledge become known remains to be seen.

Dr. Newdow said he hopes challenges will be filed in every federal judicial circuit except the U.S. Court of Appeals for the 7th Circuit, in Chicago, which upheld the practice of school-led recitations of the pledge in a 1992 decision.

"We have millions of atheists in this country. Some of them have courage, certainly one per circuit. That’s all you need," he said.

But Terence J. Cassidy, who represented the 55,000-student Elk Grove district before the high court, expressed skepticism that another case would get to the high court anytime soon. "It just doesn’t happen that easily," he said. "The stars all need to be perfectly aligned."

Vol. 23, Issue 41, Pages 1,34

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