Case name: Elk Grove Unified School Dist. v. Newdow
Background: Sacramento, Calif., atheist Michael Newdow in 2000 challenged the words “under God” in the Pledge of Allegiance, asserting they amount to a religious expression and violate the First Amendment’s establishment clause. He claimed standing on behalf of his daughter who is a student at a public school where the pledge is recited daily. The 9th U.S. Circuit Court of Appeals in 2002 ruled in his favor and agreed he had standing. The school district challenged the ruling before the Supreme Court, joined by the child’s mother Sandra Banning who claimed that Newdow has only partial custody over the child — Newdow and Banning never married and live separately — adding that both she and the daughter are Christians who do not object to reciting the pledge. Banning asserted that without her permission, Newdow did not have standing to bring the suit.
Ruling: By a 5-3 vote, the Court ruled June 14 — Flag Day — that Newdow does not have standing to challenge the pledge. Because of his limited custody, the Court found that Newdow could not bring the suit as a “next friend” to his daughter, and his other claims of injury from the recitation of the pledge also are not substantial enough to achieve “prudential” standing to sue on his own behalf. The majority opinion does not reach the merits of Newdow’s claim, but describes the Pledge of Allegiance as a “patriotic exercise designed to foster national unity,” rather than as a religious expression.
Lineup: Justice John Paul Stevens wrote the majority opinion, and was joined by Justices Anthony Kennedy, David Souter, Ruth Bader Ginsburg and Stephen Breyer. Chief Justice William Rehnquist and Justices Sandra Day O’Connor and Clarence Thomas wrote separate concurrences that state Newdow has standing — but on the merits, his First Amendment claim should fail. Justice Antonin Scalia did not participate in the case, having recused himself because of a talk he gave in which he made clear his disapproval of the 9th Circuit opinion.
First Amendment impact: The ruling, though focusing on standing, has the effect of completely reversing the 9th Circuit opinion, bringing an end to Newdow’s quixotic challenge, and freeing public schools in the 9th Circuit from any obligation to reformulate the pledge by eliminating the words “under God.” Anyone else with full custody of a child or otherwise unblemished standing to sue could bring the same challenge as Newdow did, and immediately after the ruling, several commentators predicted that would occur. But the language in Stevens’ majority opinion and the three concurrences would likely give cold comfort to any future challenger, since the justices seem unanimous in viewing the pledge as a non-religious statement of national unity.