Supreme Court Dismisses Pledge Case on Technicality
Justices Do Not Decide Constitutionality of Reference to God in Pledge of Allegiance
By William Branigin and Charles Lane
Washington Post Staff Writers
Monday, June 14, 2004; 1:30 PM
The Supreme Court ruled today that a California atheist did not have the legal standing to challenge the constitutionality of the words "under God" in the Pledge of Allegiance, dismissing on procedural grounds a lower court's ruling in his favor but sidestepping the broader question of whether the pledge itself is constitutional.
The ruling effectively preserved the phrase "one nation under God" that is recited daily as part of the pledge by millions of schoolchildren across the country.
But by basing the decision on a procedural issue, the Supreme Court left open the prospect that a challenge to the constitutionality of the Pledge of Allegiance could come up again.
In a ruling that, coincidentally, was issued on Flag Day -- and on the 50th anniversary of the addition by Congress of the words "under God" to the pledge -- the justices voted 8-0 to overturn a ruling two years ago by the 9th U.S. Circuit Court of Appeals that the pledge was unconstitutional in public schools because it violated the separation of church and state. Justice Antonin Scalia did not participate in the case.
Five of the justices voted against the 9th Circuit's ruling on the grounds that Michael Newdow, the California atheist who filed suit to ban the pledge from his daughter's school, did not have the legal standing to speak for the girl because he did not have sufficient custody to qualify as her legal representative. The girl, who is in elementary school, was not named in the case.
Chief Justice William H. Rehnquist and two other justices -- Sandra Day O'Connor and Clarence Thomas -- agreed that the lower court's ruling should be overturned, but not on the standing issue. Instead, they argued that the words "under God" in the pledge do not violate the Constitution.
"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 majority.
Newdow, a emergency-room doctor and law graduate who acted as his own attorney, is involved a custody battle with his daughter's mother, Sandra Banning, a born-again Christian who has custody of the girl on school days. Banning, who has never been married to Newdow, has told the court that she has no objection to her daughter's reciting the pledge.
Newdow rejected the ruling that he lacked legal standing to speak for his daughter.
"She spends 10 days a month with me," he said, according to the Associated Press. "The suggestion that I don't have sufficient custody is just incredible. This is such a blow for parental rights."
He vowed to continue his fight. "The pledge is still unconstitutional," he said. "What is being done to parents is unconstitutional."
If the 9th Circuit's decision had been upheld, it effectively would have deleted the reference to God from the pledge as recited by millions of schoolchildren nationwide. The 9th Circuit's ruling had applied to nearly 10 million schoolchildren in California and eight other western states.
The words "under God" were added to the pledge by Congress on June 14, 1954, during the Cold War as a way to distinguish the United States from atheistic communism.
The 9th Circuit ruling sparked a furor when it was issued, drawing intense criticism from religious conservatives and opposition from the Bush administration.
The Bush administration's solicitor general, Theodore Olson, has argued that the pledge with those words did not constitute state-sponsored prayer, which is banned from public schools under a Supreme Court decision, or any sort of prohibited religious ritual. Instead, Olson has said, the reference acknowledges America's religious heritage in a ceremonial and historical sense and does not substantially differ from the motto, "In God We Trust," on U.S. currency.
In a separate action today, the Supreme Court also declined to allow former U.S. hostages in Iran to sue the Iranian government for $33 billion.
The U.S. Court of Appeals for the District of Columbia had ruled last year that legal action against the Iranian government in the case was barred by an agreement with Iran that led to the hostages' release after 444 days in captivity. The hostages, mostly diplomats, were seized in at the U.S. Embassy in Tehran and held until January 1980.
The Supreme Court declined, without comment, to reconsider the lower-court ruling.
© 2004 The Washington Post Company