'Under God' stands in pledge; High court cites technicality
WASHINGTON (BP)--The U.S. Supreme Court protected the phrase "under God" in the Pledge of Allegiance to the flag June 14 without determining whether the reference to deity is constitutional.
All eight justices involved in the case agreed to overrule a lower court decision that a California school district's policy requiring recitation of the pledge is unconstitutional.
A majority of five based the court's opinion on a technical rather than a constitutional matter, deciding atheist Michael Newdow did not have legal standing to represent his daughter in the challenge to the pledge. While agreeing with the outcome, three other justices said "under God" is constitutional.
The result is American schools maintain the right to have the recitation of the pledge as part of their classroom practice, but the possibility remains the high court may rule in a later case that "under God" violates the First Amendment's ban on government establishment of religion.
Supporters of the pledge's current language applauded the decision, even though the Flag Day ruling fell short of a total victory.
"We're back now to the status quo ... and I'm happy with that," said Richard Land, president of the Southern Baptist Ethics & Religious Liberty Commission. "As long as American children can voluntarily say the Pledge of Allegiance, then I've got no problems.
"If they were to have ruled the other way, then I would have helped lead an effort which would have had a lot of support -- I think overwhelming and crushing support -- to amend" the Constitution, he said. "I don't think the Supreme Court wanted the American people amending the Constitution with record rapidity, which they would have done. So they chose what they often do when they don't want to really confront an issue, and that is the path of least resistance.
"I would say that this is a serious tactical setback for the secularists in this country who are not content with a merely secular state. They want an aggressively secular society," Land said.
"It really doesn't matter that the Supreme Court did not address the merits of the case," said Jay Sekulow, chief counsel of the American Center for Law and Justice, in a written release. "The high court had several ways it could have disposed of this troubling decision, and we're delighted that the suit has been dismissed and the pledge remains intact. [T]he 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."
Jordan Lorence, senior counsel for the Alliance Defense Fund, said in a written statement, "The good news is that the Supreme Court vacated an extreme, poorly reasoned decision by the Ninth Circuit Court of Appeals. Because the case was dismissed on a technicality ... [W]e believe the battle will continue."
According to the Associated Press, Newdow said, "The suggestion that I don't have sufficient custody is just incredible. This is such a blow for parental rights."
The high court, with Associate Justice John Paul Stevens writing the majority opinion, said a California Superior Court ruling that Sandra Banning, the mother of Newdow's elementary-age daughter, "makes the final decisions" when there is a disagreement between the parents means he "lacks the right to litigate as [his daughter's] next friend."
While Newdow retains the right to "instruct his daughter in his religious views," Stevens wrote, the California court's ruling does "not stand for the proposition that Newdow has a right to dictate to others what they may and may not say to his child respecting religion."
"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," Stevens wrote.
Chief Justice William Rehnquist and associates Sandra Day O'Connor and Clarence Thomas wrote opinions concurring with the majority's judgment while saying the pledge does not violate the establishment clause.
"Reciting the Pledge, or listening to others recite it, is a patriotic exercise, not a religious one; participants promise fidelity to our flag and our Nation, not to any particular God, faith or church," Rehnquist wrote. To give a parent "a sort of 'heckler's veto' over a patriotic ceremony willingly participated in by other students, simply because the Pledge of Allegiance contains the descriptive phrase 'under God,' is an unwarranted extension" of the establishment clause, he said.
Thomas took a more radical approach, saying the high court's precedent would support the lower court's ruling against the pledge but one of those preceding decisions, Lee v. Weisman, was wrongly decided. He said he would use this case "to begin the process of rethinking" the establishment clause.
"Quite simply, the Establishment Clause is best understood as a federalism provision -- it protects state establishments from federal interference but does not protect any individual right," Thomas wrote.
In the 1992 Lee decision, the high court said a prayer by a Jewish rabbi at a junior high graduation ceremony was a government establishment of religion.
Associate Justice Antonin Scalia did not participate in the pledge case, having recused himself without explanation. Scalia, considered the court's most conservative member, had publicly criticized the Ninth Circuit's opinion, however, before it arrived at the Supreme Court.
Newdow, who sued the Elk Grove (Calif.) Unified School District over its pledge, argued in his own behalf in oral arguments before the Supreme Court in March. A three-judge panel of the Ninth Circuit, which is based in San Francisco, Calif., ruled in his favor on two occasions.
The case broke into national significance in June 2002 when the panel overruled a lower court. After a national outcry against the opinion and a request for a rehearing, the panel refused to rehear the case as a larger group but revised its decision in February 2003. The panel's amended opinion maintained the central holding in the case but tightened its scope. The revised decision did not strike down a 1954 federal law adding "under God" after "one nation," as its June ruling had. Instead, the amended opinion targeted the school district's requirement that its teachers lead "willing students" in the pledge daily.
After the Ninth Circuit panel ruled for Newdow in 2002, it was revealed his daughter did not oppose the pledge. Banning said her daughter enjoyed reciting the pledge. Banning also said her daughter and she are members of Calvary Chapel of Laguna Creek, an evangelical church in Elk Grove.
An AP poll several months ago showed 87 percent of Americans believe "under God" should remain in the pledge.
The opinion in Elk Grove Unified School District v. Newdow may be accessed on the Internet at www.supremecourtus.gov.