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High court: Atheist can't challenge 'God' in Pledge

By The Associated Press
06.14.04

WASHINGTON — The Supreme Court today at least temporarily preserved the phrase "one nation, under God," in the Pledge of Allegiance, ruling that a California atheist could not challenge the patriotic oath while sidestepping the broader question of separation of church and state.

At least for now, the decision — which came on Flag Day — leaves untouched the practice in which millions of schoolchildren around the country begin the day by reciting the pledge.

In Elk Grove Unified School Dist. v. Newdow, the Court said atheist Michael Newdow could not sue to ban the pledge from his daughter's school and others because he did not have legal authority to speak for her.

Newdow is in a protracted custody fight with the girl's mother. He does not have sufficient custody of the child to qualify as her legal representative, the justices ruled 5-3. However, all eight justices participating voted to reverse a lower court ruling in Newdow's favor.

Justice Antonin Scalia removed himself from participation in the case, presumably because of remarks he had made that seemed to telegraph his view that the pledge is constitutional.

"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 John Paul Stevens wrote for the Court.

Chief Justice William H. Rehnquist agreed with the outcome of the case, but still wrote separately to say that the pledge as recited by schoolchildren does not violate the Constitution. Justices Sandra Day O'Connor and Clarence Thomas agreed with Rehnquist, signing on to his concurring opinion. Both O'Connor and Thomas wrote their own concurring opinions as well.

“By denying Newdow standing, the Court prolongs the battle over the words ‘under God’ in the Pledge — keeping the door open for more lawsuits challenging the recitation of the Pledge in public schools," said Charles Haynes, First Amendment Center senior scholar. "But it’s clear from the three concurring opinions by Justices Rehnquist, O’Connor and Thomas that there isn’t much support on the current Court for declaring the contested phrase unconstitutional.”

"I may be the best father in the world," Newdow said shortly after the ruling was announced. "She spends 10 days a month with me. The suggestion that I don't have sufficient custody is just incredible. This is such a blow for parental rights."

The 10-year-old's mother, Sandra Banning, had told the Court she has no objection to the pledge. The full extent of the problems with the case was not apparent until she filed papers at the high court, Stevens wrote.

The ruling came on the day that Congress set aside to honor the national flag. The ruling also came exactly 50 years after Congress added the disputed words "under God" to what had been a secular patriotic oath.

The high court's lengthy opinion overturns a ruling made two years ago by the 9th U.S. Circuit Court of Appeals that the teacher-led pledge was unconstitutional in public schools. That 9th Circuit decision set off a national uproar and would have stripped the reference to God from the version of the pledge said by about 9.6 million schoolchildren in California and other western states.

Newdow's grade school daughter, who like most elementary school children, hears the Pledge of Allegiance recited daily.

The First Amendment of the U.S. Constitution guarantees that government will not "establish" religion, wording that has come to mean a general ban on overt government sponsorship of religion in public schools and elsewhere.

The Supreme Court has already said that schoolchildren cannot be required to recite the oath that begins, "I pledge allegiance to the flag of the United States of America."

The Court has also repeatedly barred school-sponsored prayer from classrooms, playing fields and school ceremonies.

The 9th Circuit said the language of the First Amendment and the Supreme Court's precedents make clear that tax-supported schools cannot lend their imprimatur to a declaration of fealty of "one nation under God."

The Bush administration, the girl's school and Newdow all asked the Supreme Court to get involved in the case.

The administration had asked the high court to rule against Newdow, either on the legal question of his ability to sue or on the constitutional issue. The administration argued that the reference to God in the pledge is more about ceremony and history than about religion.

The reference is an "official acknowledgment of our nation's religious heritage," similar to the "In God We Trust" stamped on coins and bills, Solicitor General Theodore Olson argued to the Court.

It is far-fetched to say such references pose a real danger of imposing state-sponsored religion, Olson said.

Newdow claims a judge recently gave him joint custody of the girl, whose name is not part of the legal papers filed with the Supreme Court.

Newdow holds medical and legal degrees, and says he is an ordained minister. He argued his own case at the Court in March.

The case began when Newdow sued Congress, President Bush and others to eliminate the words "under God." He asked for no damages.

Newdow said today that he would continue that fight.

"The pledge is still unconstitutional," he said. "What is being done to parents is unconstitutional."

Newdow had numerous backers at the high court, although they were outnumbered by legal briefs in favor of keeping the wording of the pledge as it is.

The Rev. Barry W. Lynn, executive director of Americans United for Separation of Church and State, said he was disappointed.

"The justices ducked this constitutional issue today, but it is likely to come back in the future," Lynn said. "Students should not feel compelled by school officials to subscribe to a particular religious belief in order to show love of country."

On the other side, the American Center for Law and Justice said the ruling removes a cloud from the pledge.

"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," said Jay Sekulow, the group's chief counsel.

Congress adopted the pledge as a secular, patriotic tribute in 1942, at the height of World War II. Congress added the phrase "under God" more than a decade later, in 1954, when the world had moved from hot war to cold.

Supporters of the new wording said it would set the United States apart from godless communism.


Update
Supreme Court won't revisit Pledge case
Michael Newdow had asked justices to consider overturning June ruling in Elk Grove Unified School Dist. v. Newdow. 08.24.04

Previous
Supreme Court takes up Pledge case
Atheist tells Court it has no choice but to keep oath out of schools, but some justices say they aren't sure if words 'under God' were intended to unite country or express religion. 03.24.04

Related

Excerpts from oral arguments in Pledge case

Partial transcript of questions, remarks by U.S. Supreme Court justices, attorneys in Elk Grove Unified School Dist. v. Newdow. 03.25.04

Quick look at Elk Grove Unified School Dist. v. Newdow
Justices vote 5-3 that Michael Newdow doesn't have standing to challenge Pledge of Allegiance. 06.14.04

Excerpts from Pledge of Allegiance ruling
Quotes from Supreme Court justices in Elk Grove Unified School Dist. v. Newdow. 06.15.04

Atheist's stellar performance may not translate into win
By Tony Mauro As surprising and effective as Michael Newdow's argument was, the question now is: Will it matter? 03.25.04

California atheist fails in quest to topple Pledge
By Tony Mauro High court leaves door open for future challenges, but at least four justices would likely uphold phrase 'under God.' 06.15.04

First Amendment plays second fiddle this term
By Tony Mauro In several cases, high court's desire to duck or dither about dispute overwhelmed First Amendment objections raised. 07.13.04

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