Posted: 6/25/04
Court rejects 'Under God' challenge on technicality
By Robert Marus
ABP Washington Bureau
WASHINGTON (ABP)–Fifty years to the day after the words “under God” were added to the Pledge of Allegiance, the U.S. Supreme Court rejected a challenge to remove them–but only on technical grounds.
On June 14, the high court reversed a 2002 federal court decision that a California public school district's policy of having teachers lead in reciting the pledge was an unconstitutional government establishment of religion. The earlier decision by the 9th U.S. Circuit Court of Appeals came after Michael Newdow–an atheist whose daughter was at the time an elementary-school student in the Elk Grove Unified School District in Sacramento–filed a lawsuit.
But five members of the Supreme Court determined Newdow lacked proper legal standing to file the suit, since he does not have legal custody of his daughter. The justices thus avoided making a sweeping constitutional ruling on church-state issues in what has proven to be one of the most controversial legal cases in recent memory.
In the lower court's decision, a three-judge panel had ruled, 2-1, that the pledge's assertion that the United States is “one nation, under God” violated the First Amendment's ban on government support for religion. That ruling set off a wave of popular protest across the country and earned bipartisan rebukes in Congress–although some groups that support strict church-state separation endorsed the decision.
But shortly after that ruling, the girl's mother, Sandra Banning, attempted to intervene in the case. Banning and Newdow never were married and were engaged in a long-running legal dispute over custody of the child, who has not been named in court papers.
Banning argued previous California court decisions gave her sole legal authority over the girl. She noted both she and her daughter are Christians who have no objection to reciting the pledge or hearing it recited.
In his brief, Newdow contended–despite the custody agreement–he retains “an unrestricted right to inculcate in his daughter–free from governmental influence–the atheistic beliefs he finds persuasive.”
But the Supreme Court ruled: “The difficulty with that argument is that Newdow's rights, as in many cases touching upon family relations, cannot be viewed in isolation.”
The court's opinion, written by Justice John Paul Stevens, continued, “This case concerns not merely Newdow's interest in inculcating his child with his views on religion, but also the rights of the child's mother as a parent generally and under the (California court) orders specifically.”
The Supreme Court also said, given the circumstances, it would be wise of them to refrain from ruling on the larger church-state issue. “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.
However, in recognition of the controversy the case inspired, three justices wrote separate concurring opinions agreeing with the decision but disagreeing with their colleagues' reasoning. Justices William Rehnquist, Sandra Day O'Connor and Clarence Thomas all asserted Newdow should have had standing to bring his case, but the case should have been rejected on constitutional grounds.
The Pledge of Allegiance has existed, in slightly different forms, since the late 1800s. In 1942, Congress made it the official pledge to the U.S. flag. On June 14, 1954, Congress added the words “under God” to the pledge, in part to contrast the United States with officially atheistic communist states, such as the Soviet Union.
Newdow argued the words–and the school district's policy of requiring teachers to lead the pledge–constitute an illegal government endorsement of religion.
But Rehnquist, in his concurring opinion, listed references to God in such government arenas as presidential speeches; the addition of the motto “In God We Trust” to U.S. money; and even the words of the Supreme Court's own marshal, who begins each session of the court by saying, “God save the United States and this honorable court.”
The chief justice wrote, “All of these events strongly suggest that our national culture allows public recognition of our nation's religious history and character.”
In her concurrence, O'Connor affirmed Rehnquist's argument, and said the sorts of “ceremonial deism” represented by the pledge's reference to God do not constitute an establishment of religion.
“It is unsurprising that a nation founded by religious refugees and dedicated to religious freedom should find references to divinity in its symbols, songs, mottoes and oaths,” she wrote.
O'Connor said such minor references to God in public oaths or ceremonies can serve “legitimate nonreligious purposes,” such as solemnizing public occasions.
“Certain ceremonial references to God and religion in our nation are the inevitable consequence of the religious history that gave birth to our founding principles of liberty,” she wrote. “It would be ironic indeed if this court were to wield our constitutional commitment to religious freedom so as to sever our ties to the traditions developed to honor it.”
While O'Connor noted the reference to God may overlook nondeistic religions such as Buddhism, “one would be hard-pressed to imagine a brief, solemnizing reference to religion that would adequately encompass every religious belief expressed by any citizen of this nation.”
She continued: “The phrase 'under God,' conceived and added at a time when our national religious diversity was neither as robust nor as well-recognized as it is now, represents a tolerable attempt to acknowledge religion and to invoke its solemnizing power without favoring any individual religious sect or belief system.”
Thomas, meanwhile, disagreed with his colleagues' assertion that the phrase “under God” is not akin to a prayer or expression of religious belief.
“It is difficult to see how this does not entail an affirmation that God exists,” Thomas wrote. “Whether or not we classify affirming the existence of God as a 'formal religious exercise' akin to prayer, it must present the same or similar constitutional problems.”
Thomas argued he would have decided the case on different grounds–namely, that the pledge is not a violation of the First Amendment because the ban on government establishment of religion applies only to the federal government and not state or local governments.
Justice Antonin Scalia did not participate in deciding the case. He recused himself, presumably because of controversy over public comments he made last year disparaging Newdow's argument.
No side in the case seemed entirely happy with its outcome. Barry Lynn, director of Americans United for Separation of Church and State, had supported Newdow. He told Associated Baptist Press it was “very disappointing that the Supreme Court ducked the constitutional issue.”
Since the decision lets public-school recitation of the pledge with the offending words continue, Lynn said, “This means that religious minorities and other believers remain second-class citizens for patriotic purposes.”
Lynn also predicted “there will be other custodial parents” in California who “will line up” to file similar suits but with proper standing.
The director of another church-state separationist group, however, said the court came to the right conclusion. “The Pledge of Allegiance is not a religious exercise,” said Brent Walker of the Baptist Joint Committee on Public Affairs.
However, Walker warned, “What is legal is not always the best thing for religion.” Such civil-religion-type references, he said, can “do more harm than good, because they can result in trivialization of religion.”
Meanwhile, a strong opponent of Newdow's argument and church-state separation in general also bemoaned the court's avoidance of the issue.
“I take little comfort from this technical ruling that leaves the real issue unresolved,” said James Kennedy, a Presbyterian pastor and Religious Right activist from Fort Lauderdale, Fla., in a press release. “I take even less comfort from the fact that only three of the eight justices participating in this case signed a separate opinion stating that recitation of the pledge in public schools is constitutional.”
James Dobson of Focus on the Family likewise criticized the court for failing to render a definitive verdict, saying the court “showed a lack of principle that is truly appalling. Instead of settling this case once and for all, the court has left the nation to wonder if God's name will be found unconstitutional if another challenge is brought in a procedurally correct fashion.”
Richard Land, president of the Southern Baptist Ethics & Religious Liberty Commission, said he is happy with the court decision.
“As long as American children can voluntarily say the Pledge of Allegiance, then I've got no problems,” he told Baptist Press, adding the American public would have insisted on amending the Constitution if the court had ruled otherwise.
“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,” Land added. “They want an aggressively secular society.”
Jay Sekulow, chief counsel for the American Center for Law & Justice–which filed an amicus brief supporting the “under God” language in the pledge–agreed the court reached the proper decision.
“By dismissing this case and removing the appeals court decision, the 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.”
Managing Editor Ken Camp contributed to this report.
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