Elk Grove v. Newdow, 542 U.S. 1; 124 S. Ct. 2301; 159 L. Ed. 2d 98 (2004)
Facts—Michael A. Newdow, an avowed atheist, sued the Elk Grove Unified School District in California, where his daughter was enrolled in kindergarten, because he objected to the daily pledge to the American flag, which includes the words “under God.” A Magistrate Judge had concluded that the pledge did not violate the Constitution, but a divided Ninth Circuit Court of Appeals reversed.
Question—Does Newdow have standing to assert his daughter’s interest in this case? Do the words “under God” in the pledge of allegiance constitute an improper establishment of religion in violation of the First and Fourteenth Amendments?
Decision—No; a majority does not address the second issue.
Reasons—J. Stevens (8–0 on the judgment; J. Scalia, who had made public statements affirming the pledge, did not participate). The pledge of allegiance to the flag dates back to the commemoration of the 400th anniversary of Columbus’s discovery of America; Congress codified the pledge in 1942, and modified it in 1954 to include the words “under God.”
After Michael Newdow filed the case, his estranged wife, Sandra Banning, who had exclusive legal custody of their daughter, asked to intervene on the basis that she and her daughter were Christians who had no objection to saying the pledge. In determining whether Newdow has standing, the Court must consider both constitutional and prudential issues. Generally, the Court leaves matters of domestic relations to the states, and California has determined that Banning has sole legal custody of the daughter. Instead of being the child’s best friend, Newdow’s own interests appear “not parallel” and indeed “potentially in conflict” with hers. Although the law allows Newdow to convey his own atheistic ideas to his child, he is claiming a very different “right to shield his daughter from influences to which she is exposed in school despite the terms of the custody order.” Lacking such standing, the Court will not intervene.
C.J. Rehnquist, concurring. The Court has erected “a novel prudential standing principle in order to avoid reaching the merits of the constitutional claim,” that its precedents do not support. It “should be governed by general principles, rather than ad hoc improvisations.” Religious references pervade U.S. history. The pledges are voluntary and the words “under God” do not convert the pledge “into a ‘religious exercise’ of the sort described in Lee v. Weisman (1992), involving prayer at school graduations.” “The phrase ‘under God’ is in no sense a prayer, nor an endorsement of any religion” but simply a recognition of the role of religion in U.S. history. To accept Newdow’s case would be to give him a “heckler’s veto.”
J. O’Connor, concurring, would defer to the circuit court’s decision that Newdow had standing, but does not believe reciting the pledge violates the establishment clause, which she interprets through the endorsement test. The words “under God” within the pledge serve “essentially secular purposes,” like commemorating the role of religion in U.S. history, solemnizing public occasions, and the like. The appropriateness of this form of “ceremonial deism” can be established by the “history and ubiquity” of the clause, the “absence of worship or prayer” in the ceremony, its “absence of reference to particular religions,” and its “highly circumscribed reference to God.” Similarly, the recitation of the pledge does not violate the “coercion” test featured in Lee v. Weisman.
J. Thomas, concurring. Thomas believes that adherence to Lee v. Weisman would require elimination of the words “under God” in the pledge, but does not think that Lee was properly decided. The only kind of coercion that should worry the Court is that “accomplished ‘by force of law and threat of penalty.’” Although the free exercise clause was designed to protect indi- vidual rights, the establishment clause was “a federalism provision intended to prevent Congress from interfering with state establishments.” The establishment clause “probably prohibits Congress from establishing a national religion” or possibly from favoring particular religious faiths, but does not go further.
