Atheist father can't sue over 'God' in Pledge
Jun. 14, 2004 11:30 AM
WASHINGTON - The Supreme Court preserved the phrase "one nation,
under God," in the Pledge of Allegiance, ruling Monday that a
California atheist could not challenge the patriotic oath but
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.
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 court said. Eight justices 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.
"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 Monday.
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 him.
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
The high court's lengthy opinion overturns a ruling two years ago
that the teacher-led pledge was unconstitutional in public schools.
That appeals court 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
Newdow's daughter, like most elementary school children, hears the
Pledge of Allegiance recited daily.
The First Amendment 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 U.S. Circuit Court of Appeals 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 to "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
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
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. He said
he would continue the fight because "the pledge is still
At a Sacramento, Calif., news conference, Elk Grove Unified School
District Superintendent Dave Gordon called the pledge "a unifying,
patriotic exercise that reflects the historical ideals upon which
this great country was founded."
He said he'd have preferred that the Supreme Court had decided the
merits of the case "and settled it once and for all for our nation."
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 the court "ducked this
constitutional issue today," and that 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 national 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.
The case is Elk Grove Unified School District v. Newdow, 02-1624.