Justices Keep 'Under God' in Pledge
Atheist Father Lacked Standing to Sue on Behalf of Daughter, Court Rules
By Charles Lane
Washington Post Staff Writer
Tuesday, June 15, 2004; Page A01
A unanimous Supreme Court ruled yesterday that the phrase "under God" may remain in the Pledge of Allegiance as recited in public school classrooms. But the Flag Day decision fell far short of the clear endorsement of the pledge's constitutionality that President Bush and leaders of both parties in Congress had sought.
While all eight justices who participated in the case voted to overturn a 2003 federal appeals court decision that would have barred the phrase in public schools as a violation of the constitutional ban on state-sponsored religion, a majority of five did so exclusively on procedural grounds, ruling that the atheist who brought the case, Michael A. Newdow, lacked legal standing to sue.
Newdow had claimed that his right to influence his daughter's religious views was infringed by daily teacher-led recitations of the pledge in her Sacramento-area public school. But the five justices noted that the child is caught in the middle of a custody dispute between Newdow and Sandra Banning, who wants her daughter to recite the pledge.
"In our view, it is improper for the federal courts to entertain a claim by a plaintiff whose standing to sue is founded on family law rights that are in dispute when prosecution of the lawsuit may have an adverse effect on the person who is the source of the plaintiff's claimed standing," Justice John Paul Stevens wrote in the opinion for the court.
Justices Anthony M. Kennedy, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer joined Stevens.
The outcome means that the pledge remains as it is -- and that a potentially incendiary election-year debate over religion, patriotism and the federal courts has been defused. The ruling leaves the door open to another case challenging recitation of the pledge in the schools, but it would take years for such a case to work its way to the Supreme Court.
Only three members of the court -- Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor and Clarence Thomas -- commented on the constitutional issue that had made this one of the most intensely watched church-state cases in recent memory.
Each supported some version of the broader claim advanced by the White House and Capitol Hill in friend-of-the-court briefs: that "under God," which was added to the pledge by a federal law adopted 50 years ago yesterday, does not amount to a prohibited religious affirmation.
The court was down to eight members because Justice Antonin Scalia had recused himself after publicly indicating his likely support of "under God." If he were still on the court when a future pledge case arrived, he would be free to participate in it.
Both supporters and opponents of the phrase expressed dissatisfaction that the court had not settled the issue at the heart of the case, Elk Grove Unified School District v. Newdow, No. 02-1624.
"While we would have preferred that the Supreme Court had ruled on the merits -- and settled it once and for all for our nation -- we are pleased that we can continue with our Board policy to have teachers lead willing students in reciting the Pledge of Allegiance," David W. Gordon, the Elk Grove superintendent of schools, said in a prepared statement.
"Today's ruling ensures that schoolchildren in every corner of America can start their day by voluntarily reciting the Pledge of Allegiance," Attorney General John D. Ashcroft said in a prepared statement.
Newdow, however, expressed anger at the decision. His daughter, he told the Associated Press, "spends 10 days a month with me. The suggestion that I don't have sufficient custody is just incredible."
The Rev. Barry W. Lynn, executive director of Americans United for Separation of Church and State, said in a prepared statement: "The justices ducked this constitutional issue today, but it is certain to come back in the future."
© 2004 The Washington Post Company