Law & Courts

New Lawsuit Challenges Pledge of Allegiance

By Caroline Hendrie — January 06, 2005 3 min read

The California atheist who argued his own case against the Pledge of Allegiance before the U.S. Supreme Court last year has filed a new lawsuit, this time with eight other plaintiffs, against five school districts, the state of California, and the United States government.

In the suit filed Jan. 3 in U.S. District Court in Sacramento, Michael A. Newdow adds new twists to many of the arguments he marshaled in Elk Grove Unified School District v. Newdow, which he lost last June when the U.S. Supreme Court ruled against him on procedural grounds. Both cases contend that the daily pledge recited by millions of American schoolchildren has been unconstitutional ever since Congress amended it in 1954 to include the words “under God.”

Dr. Newdow, who is a physician as well as a lawyer, is joined in his new suit by four other parents and four students in California public schools. The inclusion of those plaintiffs is an apparent bid to get around the high court’s holding that he lacked standing to sue because of custody issues involving his daughter, a student in the Elk Grove, Calif., public schools. The district had appealed to the Supreme Court after a three-judge panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, handed down a 2002 ruling in Dr. Newdow’s favor that touched off a political uproar.

“No one—much less impressionable children in the public schools—should ever be forced to choose between conforming to the state-endorsed religious belief or appearing as unpatriotic, political (and religious) ‘outsiders,’” the new suit says.

Removal of ‘Under God’ Sought

Teaming with Dr. Newdow as plaintiffs are a 7th grader in the Elk Grove school system, a 10th grader in the Lincoln Unified School District near Stockton, Calif., a 3rd grader in the Elverta schools in suburban Sacramento, and a kindergartner in the nearby Rio Linda schools, as well as those children’s parents. All those districts, in addition to the Sacramento city school district, where Dr. Newdow owns property, are named as defendants in the suit.

The suit maintains that the three older children have been harassed or ostracized because of their refusal to recite the words “under God” in the pledge. It also argues that the parents’ rights have been violated, in part because their children’s schools are effectively sending the message that their atheistic or agnostic views are inferior.

The lawsuit asks the court to order the state to change its laws “so that the use of the now-sectarian Pledge of Allegiance is forbidden in the public schools,” and to demand that the school districts likewise forbid the current pledge.

“When teachers lead their students in a daily recitation that states in part that we are ‘one nation under God,’ they endorse religious doctrine and inculcate a belief that not only is there a God, but that we are one nation ‘under’ that entity,” the suit says. “This is unconstitutional.”

The suit seeks an order demanding that Congress remove “under God” from the pledge, and a declaration that the current pledge violates the First Amendment’s prohibition of a government establishment of religion and its guarantees of free exercise of religion.

Terence J. Cassidy, a Sacramento lawyer who represented the Elk Grove district in Dr. Newdow’s earlier court fight, suggested that the second suit faced even longer odds than the first one did, following the high court’s ruling last June. While five of the eight participating justices agreed that the case should be dismissed because of Dr. Newdow’s lack of legal standing, three of them said in concurring opinions that they believed that the current pledge was constitutional.

Mr. Cassidy also pointed out that the high court long ago made clear that students cannot be compelled to recite the pledge, in its 1943 ruling in West Virginia State Board of Education v. Barnette.

“We still believe that the plaintiffs will have significant difficulty in overcoming the fact that recitation of the pledge with the words ‘under God’ is voluntary,” Mr. Cassidy said.

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