WASHINGTON From the moment Justice John Paul Stevens began speaking from the bench yesterday, it was clear that Sacramento, Calif., atheist Michael Newdow's quixotic challenge to the words "under God" in the Pledge of Allegiance had come to an unsuccessful end.
Stevens is often viewed as a liberal on the high court, but on matters relating to the American flag, the World War II veteran is hawkish, having voted in 1989 to uphold a state law that criminalized flag-burning. Stevens quoted from his dissent in that case, Texas v. Johnson, and also noted that yesterday, Flag Day, was the 50th anniversary of the signing of the law that inserted the words "under God" into the Pledge. Newdow was clearly in trouble.
But while Stevens' opinion for a five-justice majority clearly showed fondness for the pledge and the flag that it honors, it did not come down firmly one way or the other on the actual assertion that Newdow made in his long-shot litigation: that the daily recitation of the pledge in his daughter's public school violates the establishment clause of the First Amendment. Instead, Stevens said that because of Newdow's tangled family story he has only partial custody over his 10-year-old daughter he did not have sufficient standing to raise the constitutional challenge on her behalf.
Question of standing
In the aftermath of the ruling in Elk Grove Unified School Dist. v. Newdow, it appears clear that Stevens has left room though not a lot of encouragement for another atheist with unblemished standing to head to any federal court to launch a similar lawsuit. Some scholars are even debating whether the controversial 2002 ruling by the 9th U.S. Circuit Court of Appeals that found the pledge unconstitutional may still have some precedential value for future cases, since the high court struck it down only on the issue of Newdow's standing.
Newdow never married, and is separated from, Sandra Banning, the girl's mother. In their ongoing custody battle, a California judge has given Newdow partial custody but ruled that Banning has the final say in decisions about the girl's education and legal interests. Because of these rulings, Stevens said, Newdow had been stripped of the right to sue as "next friend" to his daughter, though he added that someone with "next friend" status "surely could exercise that right."
Another reason Newdow lacks standing, Stevens said, is that nothing the school board has done in requiring willing students to recite the pledge "impairs Newdow's right to instruct his daughter in his religious views." Under the Constitution, the federal courts only review "cases and controversies," which the Court has interpreted to mean that litigants must show they have suffered some kind of harm to qualify for filing a suit. In this case, mere dislike of the pledge is not enough.
Stevens also said that family court determinations, like the ones that govern Newdow's custody rights in California, are quintessentially state decisions that federal courts should not meddle in.
"When hard questions of domestic relations are sure to affect the outcome," Stevens wrote, "the prudent course is for the federal court to stay its hand rather than to reach out to resolve a weighty question of federal constitutional law."
The ruling achieved what appeared to be the Court's main objective: sparing the Court and the nation the election-year battle that a ruling on the merits of the case would have brought. If the Court had merely declined to review the 9th Circuit ruling, that decision would have taken effect, and millions of students in the western states would be reciting the pledge without the words "under God." A ruling that actually nullified the 9th Circuit decision was needed to make the controversy go away, at least temporarily. Any lawsuit by another atheist, even if filed today, likely would not make its way back to the Supreme Court for another year or more.
Cold comfort for challengers
Newdow supporters said the Court had ducked the issue on flimsy grounds and predicted the wording of the pledge would be challenged again soon. "Students who are outside the Judeo-Christian tradition should not be pressured by their teachers to put aside their beliefs in order to show love of country," said Barry Lynn, executive director of Americans United for Separation of Church and State. "The compelling issues raised by this case won't disappear because of today's action by the Supreme Court."
Pledge supporters were pleased that the Court had not supported Newdow's claim. "The Supreme Court has removed a dark cloud that has been hanging over one of the nation's most important and cherished traditions the ability of students across the nation to acknowledge the fact that our freedoms in this country come from God, not government," said Jay Sekulow, chief counsel of the American Center for Law and Justice.
Though avoiding the merits of the pledge challenge, the Stevens majority with its commentary about the pledge and the flag taken together with three separate concurring opinions by Chief Justice William Rehnquist and Justices Sandra Day O'Connor and Clarence Thomas, would give cold comfort to any future pledge challenger.
Stevens briefly recited the history of the pledge, which he described as a "patriotic exercise designed to foster national pride and unity" rather than as any kind of religious expression. He said the pledge also promoted values represented by the American flag.
In his concurrence, Rehnquist listed numerous religious invocations by presidents going back to George Washington, as well as other events that "strongly suggest that our national culture allows public recognition of our nation's religious history and character."
The phrase "under God" does not convert the pledge into a religious expression, Rehnquist added, and "cannot possibly lead to the establishment of a religion, or anything like it."
O'Connor agreed, also offering a definition for "ceremonial deism," the phrase often used to describe routine public references to a deity that do not offend the First Amendment. The pledge fits her definition, which includes tests for the history, commonness and content of the religious reference, and whether it refers to a particular religion. She said "under God" meets the test, even though not all religions recognize a single god. "One would be hard pressed to imagine a brief solemnizing reference to religion that would adequately encompass every religious belief expressed by any citizen of this nation," O'Connor wrote.
The ruling and concurrences suggest "critical mass" on the Court in favor of the pledge, said Joseph Kobylka, a constitutional law scholar at Southern Methodist University. "If this issue comes before them again, they would rule that the pledge of allegiance is constitutional," he said.
The closest a justice came to supporting Newdow's assertions was in the concurrence by Thomas, who said that under the Court's 1992 precedent Lee v. Weisman, the 9th Circuit ruling in Newdow's favor was "persuasive." The Lee ruling said that even though attendance at graduations was not mandatory, reciting a prayer at graduations was unconstitutional because "peer pressure" would make students feel coerced into participating in a religious exercise.
Under that theory, Thomas said, reciting the pledge every day was "more troubling" than a one-time benediction at graduations. "As a matter of our precedent, the Pledge policy is unconstitutional," Thomas said. But he went on to say that the Court's precedents, especially Lee, were wrong and should be overturned."
Thomas's concurrence was novel for another reason. He went on to say that the establishment clause should not be read to restrict actions by states, such as California's pledge recital policy. Under the Supreme Court's jurisprudence over the last century, most guarantees of the Bill of Rights have been "incorporated" to apply to state as well as federal actions. In the 1980s Attorney General Edwin Meese III ignited controversy, but little support, when he questioned the incorporation doctrine as part of his campaign to strengthen the power of states in the federal system.
Thomas said the establishment clause the part of the First Amendment that says "Congress shall make no law respecting an establishment of religion" is unlike other parts of the Bill of Rights. "Quite simply, the Establishment Clause is best understood as a federalism provision it protects state establishments from federal interference but does not protect an individual right."
'I want an atheist. I want me.'
Newdow's handling of the case, as well as the issue itself, made headlines. Unlike many high court litigants, he insisted on arguing the case himself, dusting off his credentials as a lawyer. An emergency room physician, Newdow had also graduated from the University of Michigan Law School in 1988 but never practiced law. "I want an atheist. I want me," he said. After practicing before nearly a dozen moot courts, Newdow won praise when he actually argued the case March 24.
Newdow also raised eyebrows when he petitioned Justice Antonin Scalia to recuse himself from the case because of a speech the justice had given in which he made it clear that he disapproved of the 9th Circuit decision the high court was reviewing. Scalia apparently agreed and let it be known he would not participate.
That gave Newdow a strategic boost he would only need four votes to win instead of five but in the end that made no difference, as none of the other eight justices sided with him.
Last week, as the inevitable decision day approached, Newdow e-mailed to reporters a poem predicting that the ruling would come down on Flag Day:
I feel it is incumbent upon me to report
That some believe there's poetry within our Supreme Court
So be apprised that quite precisely fifty years ago
The date the Congress chose to change the Pledge in ways you know
Was June 14 Flag Day the year: 1954
Perhaps this year on that date they'll choose to underscore
That principles are sacrosanct and shouldn't bend a smidgen
It says, "NO law." How perfect, for a government's religion.