Court Ruling Keeps Pledge Intact
but Leaves 'God' Issue Unsettled
By DAVID STOUT, NYTimes on the Web, June 14, 2004
WASHINGTON -- The Supreme Court ruled today that the phrase "one nation, under God" can stay in the Pledge of Allegiance to the flag recited by millions of schoolchildren each day, at least for the time being.
But the justices -- deciding the case, coincidentally, on Flag Day -- did not reach a finding on the fundamental question of whether the pledge violates the constitutional demarcation line between church and state.
That question could come before the court again, given the somewhat narrow parameters of today's ruling.
The court held today that the plaintiff, Michael Newdow, did not have standing to bring a suit challenging the pledge as presently worded.
Eight justices agreed that Dr. Newdow, a nonpracticing lawyer who is also a physician, cannot qualify as a legal representative of his 10-year-old daughter, on whose behalf he filed suit.
Arguing in his own behalf when the justices heard the case on March 24, Dr. Newdow, an avowed atheist, asserted it was wrong for his daughter to be compelled each school morning "to stand up, put her hand over her heart, and say your father is wrong," or else refuse to take part in the pledge -- an excruciatingly difficult thing for a child to do in front of her peers. (In 1943, 11 years before the "under God" phrase was added, the Supreme Court ruled that no one can be compelled to recite the Pledge of Allegiance.)
In rejecting Dr. Newdow's argument, the eight justices noted that he was involved in a protracted custody fight with the girl's mother, Sandra Banning.
Ms. Banning, who was never married to Dr. Newdow, has said through her lawyers that she is giving her daughter a religious upbringing and wants her to recite the pledge complete with the phrase "under God."
"One of the principal areas in which this court has customarily declined to intervene is the realm of domestic relations," Justice John Paul Stevens wrote.
His opinion was joined by Justices Anthony M. Kennedy, David H. Souter, Ruth Bader Gingsburg and Stephen G. Breyer.
Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor and Clarence Thomas wrote separately, concurring with the Stevens opinion that Dr. Newdow lacked standing to sue.
But the three justices went further, asserting in language that many people had hoped would come from the Supreme Court as a whole, that the pledge with the "under God" phrase is indeed constitutional.
Justice Antonin Scalia took no part in today's decision. He recused himself after giving a speech that was sharply critical of a ruling in early 2003 by the United States Court of Appeals for the Ninth Circuit, in San Francisco.
The Ninth Circuit ruling, which today's Supreme Court action reversed, held that the inclusion of the words "under God" had turned the pledge into "a profession of religious belief" and made it constitutionally unsuitable for daily recitation in the public schools.
Congress added the phrase "under God" 50 years ago today, at the height of the cold war, to distinguish American values from "Godless Communism."
The Ninth Circuit ruling, had it stood, would have snipped the "under God" phrase from the pledge recited by some 10 million children in California and other Western states under the Ninth Circuit's jurisdiction.
That decision set off an emotional uproar, among lawyers, politicians and private citizens.
The Bush administration had asked the Supreme Court to overturn the Ninth Circuit ruling.
Although the outcome today hinged on a seemingly technical issue involving child custody, the opinion by Justice Stevens in Elk Grove Unified School District v. Newdow, No. 02-1624, sought to dispel any impression that the issue is a trivial one.
"This case concerns not merely Newdow's interest in inculcating his child with his views on religion, but also the rights of the child's mother," Justice Stevens wrote.
"And most important, it 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."
Dr. Newdow said shortly after the decision was announced that it was a bitter disappointment.
"She spends 10 days a month with me," Dr. Newdow said in an interview with The Associated Press.
"The suggestion that I don't have sufficient custody is just incredible."
Chief Justice Rehnquist and Justices O'Connor and Thomas sharply criticized their five colleagues for embracing the relatively narrow child-custody question.
Dr. Newdow "does not ask this court to issue a divorce, alimony or child custody decree," the three wrote, asserting that the "under God" phrase is constitutional.
The three partial dissenters cited numerous instances in which the concept of God had been invoked, including Lincoln's Gettysburg Address and Gen. Dwight D. Eisenhower's order to the Allied Expeditionary Force on the invasion of Normandy on June 6, 1944.
Given the boundaries of today's Supreme Court finding, and the emotional nature of the arguments, such language is likely to be recalled again
-- perhaps in the Supreme Court.
The Rev. Barry W. Lynn, executive director of Americans United for Separation of Church and State, expressed disappointment at today's ruling.
"The justices ducked this constitutional issue today, but it is likely to come back in the future," he said in an interview with The
A.P. "Students should not feel compelled by school officials to subscribe to a particular religious belief in order to show love of country."
But the American Center for Law and Justice had a different reaction. "While the court did not address the merits of the case, it is clear that the Pledge of Allegiance and the words
'under God' can continue to be recited by students across America," Jay Sekulow, the group's chief counsel, told The A.P.