Articles

Challenge To Pledge Is Rejected

Steve Lash, AJC Staff
June 14, 2004

WASHINGTON -- The United States remains one nation "under God," at least for now.

The Supreme Court, over strong objections from three justices, declined Monday to rule on whether the two-word phrase in the Pledge of Allegiance violates the constitutional separation of church and state when recited in public schools.

Instead, a five-member majority of the nation's highest court cited technical grounds for invalidating a lower court decision against the phrase.

Justice John Paul Stevens, writing for the majority, said the California atheist who filed the challenge had no legal standing to object to the oath's recital in his daughter's elementary-school classroom because custody of the girl, who lives with her mother, is in dispute.

The decision fell far short of the clear endorsement of the constitutionality of the pledge that President Bush and leaders of both parties in Congress had sought -- and which the objecting justices, including Chief Justice William Rehnquist, said they would have provided.

Michael Newdow, a physician and lawyer who argued his own case before the Supreme Court in March, did not immediately respond to the decision.

Rehnquist and Justices Clarence Thomas and Sandra Day O'Connor contended that "under God" is a valid, nonreligious reference to the Almighty. The chief justice noted that federal and state governments often invoke the deity in permissible, secular public pronouncements, such as in the motto "In God We Trust" printed on U.S. currency.

Newdow had contended that the morning recitation of the pledge by his daughter's class is tantamount to the Elk Grove, Calif., school district telling her every day that her father is wrong not to believe in God.

Though the school district allowed his daughter to skip the daily recital, Newdow said any elementary school student would feel compelled to join her classmates.

Such compulsory participation in reciting a religious oath violates the First Amendment's prohibition on state establishment of religion, Newdow argued.

In a decision that set off a national uproar, the 9th U.S. Circuit Court of Appeals in San Francisco found in Newdow's favor in 2002, saying the First Amendment and Supreme Court precedents make clear that tax-supported schools cannot lend their imprimatur to a declaration of fealty to "one nation under God."

The Supreme Court's ruling on the merits of the argument brought to an anticlimax one of the most closely watched cases of the current justices' term, which will end in the next several weeks.

'A patriotic exercise'

In announcing the ruling from the bench, Stevens noted it was Flag Day and the 50th anniversary of the words "under God" being added to the pledge by an act of Congress.

Stevens called the pledge "a common public acknowledgment of the ideals that our flag symbolizes." He said reciting the pledge is "a patriotic exercise designed to foster national unity and pride in those principles."

Though the court's opinion began as a lofty defense of the pledge, Stevens ultimately concluded that the court could not address Newdow's claim.

The girl's mother, Sandra Banning, a Christian, does not object to the phrase "under God" and has said she opposed Newdow's challenge. The court ruled she was the ultimate authority in the matter because California courts had given her exclusive legal custody of the girl, "including the sole right to represent [her] legal interests."

Joining Stevens in the majority were Justices Anthony Kennedy, David Souter, Ruth Bader Ginsburg and Stephen Breyer. The court's ninth justice, Antonin Scalia, recused himself after making off-the-bench remarks that seemed to telegraph his view that the pledge is constitutional.

Rehnquist called the recitation of the pledge by schoolchildren a "commendable patriotic observance." He said the use of "under God" is not an unconstitutional governmental endorsement of religion but merely one of many "patriotic invocations of God and official acknowledgments of religion's role in our nation's history."

Besides "In God We Trust," secular references to the Almighty include the Supreme Court marshal's proclamation, "God save the United States and this honorable court," before the justices sit in public session, Rehnquist said.

"The phrase 'under God' is in no sense a prayer, nor an endorsement of any religion, but a simple recognition of the fact that from the time of our earliest history, our people and our institutions have reflected the traditional concept that our nation was founded on a fundamental belief in God," he wrote.

O'Connor concurs

O'Connor, in her concurrence, wrote that, like other ceremonial references to the deity, the phrase is not an endorsement of religion but a way to emphasize the pledge's importance.

"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.

The group Americans United for Separation of Church and State expressed disappointment at the court's ruling.

"Students who are outside the Judeo-Christian tradition should not be pressured by their teachers to put aside their beliefs in order to show love of country," said Barry Lynn, executive director of the Washington-based group.

The Washington Post and The Associated Press contributed to this article.

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