Pledge Case

In one of the most watched cases of the Term, the Court had to decide whether the phrase "under God" in the Pledge of Allegiance violated the First Amendment's Establishment Clause. The phrase, inserted by Congress at the height of the Cold War in 1954 in an effort to distinguish the "godly" United States from the "godless communists," had earlier been ruled unconstitutional by a panel of the Ninth Circuit Court of Appeals, a decision that evoked almost universal criticism of the judges, including comments by Justice Antonin Scalia, who spoke harshly of the decision at a Religious Freedom Day even in Fredericksburg, Virginia. The appeals court modified its decision, emphasizing that the pledge could be required, but evading the question of overall constitutionality. It then agreed to delay implementation until and if the Supreme Court took the case, Elk Grove Unified School District v. Newdow, on appeal. The Court did accept the case, with Justice Scalia recusing himself at Newdow's request because of his earlier comments.

The case itself became a media circus when the plaintiff, Michael A. Newdow, a self-styled atheist activist, announced that he wanted to argue the case before the high court, just as he had done in the lower courts. While speculation was rampant that without Scalia voting the justices might tie at 4-4, thus leaving the appeals panel judgment in place, the real issue was whether Newdow had standing in the first place to bring the suit on behalf of his nine-year-old daughter. Standing is a key element in all lawsuits, and the initial requirement that any plaintiff must meet. For a person to bring suit, he or she must have an identifiable interest in the question to be decided by the court.  Thus a prisoner on death row would have standing to challenge her conviction on a variety of grounds, because she would have a tangible interest in what the courts decided. A person who opposed capital punishment in general, however, has no standing to bring a suit on behalf of a prisoner. To complicate matters further, most commentators believe that no one on the current Court is more of a stickler regarding standing than Justice Scalia.

The plaintiff, Michael A. Newdow, according to one columnist, "is your worst fantasy in a custody dispute. The atheist not only kept up a running custody battle with his daughter's born-again Christian mother, he's kept up a running battle with his daughter's school, his state, and his government." The girl's mother, Sandra Banning (she and Newdow had never married), engaged Kenneth Starr to contest Newdow's standing, to tell the Court that she had primary responsibility for the girl, and that she had no objections to the child reciting the Pledge.

What made the case even more interesting is that a number of legal scholars agreed in principle with Newdow, although they doubted that the Court would take that route.  Buffalo Law School professor Lee A. Albert said that "as a matter of principle, the people who object to the phrase `under God' have a point, but I don't think the Court is going to spend a great deal of its persuasive currency upholding that ruling." Barry Lynn of Americans United for Separation of Church and State noted that students "are effectively forced to be part of a religious observance and they are expected to stay while it is going on."  In effect, the pledge constituted a required religious loyalty oath for school children.  The "required" part is what had led the Ninth Circuit panel to act, and the Court itself had struck down a required flag salute six decades earlier in West Virginia v. Barnette (1943).

The Court granted Newdow his request to appear pro hac vice (especially for this case), although he had not practiced law sufficient years to qualify for membership in the Supreme Court bar.  But it became clear during oral argument that while Newdow made an eloquent statement of his case, he did not address an issue that the Court had specifically said it wanted information about -- his standing to go forward with the case. He began his argument by turning slightly to face the American flag in the corner of the chamber and mimicking what students do when the recite the pledge. Every day, he said, his daughter is coerced to place her hand over her heart and declare, in effect, that her father is wrong in his atheistic views.

In the end, the Court as expected ducked the merits of the case by deciding that Newdow lacked standing to bring the suit. Because he was at the time in a protracted custody battle with the girl's mother, he did not have sufficient custody of the child to speak for her in bringing the suit.  Writing for a unanimous Court, Justice John Paul Stevens noted that "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." As to the relationship between Newdow and his daughter, Stevens noted that the interests not only were not parallel but were potentially in conflict.  Newdow remained free to instruct his daughter in his views, but California law did not give him "a right to dictate to others what they may or may not say to his child respecting religion." Lacking a plaintiff with standing, federal courts did not have jurisdiction over the case.

While all eight justices concurred in the result, Chief Justice Rehnquist, and Justices O'Connor and Thomas wrote separately to say that the pledge as recited by schoolchildren did not violate the Constitution. Although he did not have to, the Chief Justice addressed the actual merits of the case, and declared that "reciting the pledge, or listening to others recite it, is a patriotic exercise, not a religious one." Justice O'Connor called the pledge a permissible example of "ceremonial deism" rather than religious worship, similar to the words the marshal of the Court intones at the start of each session -- "God save the United States and this honorable court."

While Rehnquist and O'Connor found the pledge valid under existing precedents, Justice Thomas took a somewhat different approach. He believed that the Court's precedents actually did make the pledge unconstitutional, and he thought those precedents should be examined.

With three members of the Court stating in their opinions that they believed the pledge constitutional, and a fourth agreeing in an extrajudicial statement, it is unclear exactly how the Court would vote should a plaintiff with standing make the same argument as Newdow.  No doubt the Court would prefer that such a case never arose, but out in the country there is most likely an atheist who, emboldened by Newdow's suit, may wish to push the issue. If so, the lower courts will have no precedent from this case as to how they should act, and whatever the decision, an appeal would bring the matter back to the Marble Palace.

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