Federal judge to narrow latest Pledge suit

By The Associated Press
07.19.05

SACRAMENTO, Calif. — An atheist who convinced a federal appeals court three years ago that the words “under God” in the Pledge of Allegiance are unconstitutional returned to court yesterday and made his case a second time.

Michael Newdow, a doctor and lawyer, is suing four Sacramento-area school districts on behalf several atheist children and their families. The U.S. Supreme Court dismissed his first case last year, saying he lacked standing to bring it on behalf of his elementary-aged daughter because he did not have custody of her.

Newdow suffered a setback yesterday in his latest case when the judge said he planned to throw out several parts of Newdow’s lawsuit.

U.S. District Judge Lawrence Karlton indicated that he planned to block Newdow from having the pledge itself and the words “under God” declared unconstitutional. His lawsuit instead would focus strictly on whether reciting the pledge in public schools is an unconstitutional endorsement of religion, meaning Newdow could still have the pledge barred from schools if he prevails in the long-shot effort.

“What I’m doing is cutting out a whole lot of your case and making it narrow,” Karlton said during the first hearing on the lawsuit.

Terence Cassidy, a lawyer for the Elk Grove Unified School District, urged the judge to dismiss the entire case. He said reciting the pledge in school was not about religion, but rather is designed “to teach children about patriotism.”

Newdow’s lawsuit was filed against the school districts, the state and Congress and seeks to have the entire pledge declared unconstitutional.

After yesterday’s hearing, he appeared unmoved by the judge’s expected narrowing of the lawsuit. He said any decision was likely to be appealed.

Newdow won his initial case more than two years ago before the San Francisco-based 9th U.S. Circuit Court of Appeals. That court said it was an unconstitutional blending of church and state for public school students to pledge to God.

The U.S. Supreme Court rejected the case, Elk Grove Unified School Dist. v. Newdow, in June 2004, saying Newdow could not lawfully sue because he did not have custody of his daughter and because the girl’s mother objected to the lawsuit. Newdow and the mother were never married.

Eight co-plaintiffs have joined the latest lawsuit, all of whom are children or custodial parents who have filed the suit on behalf of their children, Newdow said. The plaintiffs’ names have been withheld from the suit for fear of physical harm.

“We’re a despised minority,” Newdow told the judge.

When the Supreme Court dismissed his previous case, three justices — Chief Justice William H. Rehnquist and Justices Sandra Day O’Connor and Clarence Thomas — made clear they would have upheld the religious reference Congress inserted into the pledge in 1954. A fourth justice, Antonin Scalia, removed himself from the case after making off-the-bench remarks that seemed to telegraph his view that the pledge is constitutional.

Karlton did not indicate when he would issue a written ruling.

The case is Newdow v. Congress, 05-00017.