Elk Grove Unified School District v. Newdow, Michael, et al. (06/14/2004)

8-0 for Elk Grove Unified School District (Stevens-June 14, 2004)

"Under God," Pledge of Allegiance, 1st Amendment, establishment clause

Questions presented: (1) Whether Michael Newdow has standing to challenge as unconstitutional a public school district policy that requires teachers to lead willing students in reciting the Pledge of Allegiance? (2) Whether a public school district policy that requires teachers to lead willing students in reciting the Pledge of Allegiance, which includes the words "under God," violates the Establishment Clause of the 1st Amendment, as applicable through the 14th Amendment?

BY SHANA WILSON & JACK C. DOPPELT, MEDILL NEWS SERVICE

One day in November 1997, something caused Michael Newdow to take a closer look at the currency he uses to purchase things every day. Most people hardly notice the phrase "In God We Trust" printed and engraved on every piece of American currency. References to God in courtrooms, on money and in various other places are often overlooked or written off as antiquated formalities in our society.

But for Newdow, an atheist, the references to God he sees and hears every day seem to be another way for the American government to make him feel like an outsider for his beliefs. Newdow likens references to monotheism with segregation, saying they only serve to make those who don’t believe in one god, or any god, feel like outsiders.

When Newdow’s five-year-old daughter entered the public school system as a kindergarten student in California’s Elk Grove Unified School District, he decided he did not believe she should have to be exposed to the references to God made in the daily recitation of the Pledge of Allegiance.

Newdow, raising his daughter as a non-custodial parent in accordance with his atheistic beliefs, says that she is harmed by having to listen to her teachers and classmates recite the Pledge, she is made to feel like an outsider when she refrains from saying it, and she is "indoctrinated with the belief that there is a god, and that real Americans believe that there is a god."

On March 8, 2000, Newdow, a nonpracticing lawyer and emergency room physician, filed suit on his own behalf in U.S. District Court for the Eastern District of California. Newdow represented himself and his daughter as "next friend" in the suit, which listed as defendants: the United States Congress, the United States, the president, the state of California, Elk Grove Unified School District and its superintendent, and Sacramento City Unified School District and its superintendent.

The suit alleged that Congress violated the establishment clause of the 1st Amendment when it altered the Pledge of Allegiance on June 14, 1954. The original Pledge, approved by President Franklin D. Roosevelt in 1942, according to the lawsuit, never contained any reference to religion. It read, "I pledge allegiance to the flag of the United States of America and to the Republic for which it stands, one Nation indivisible, with liberty and justice for all."

In 1954, however, Congress passed an act to add the words "under God" to the Pledge of Allegiance. Newdow contended in his suit that the Act of 1954 is unconstitutional because the motives behind it were purely religious, and according to the Bill of Rights, "Congress shall make no law respecting the establishment of religion." He cited a transcript from a 1954 session of Congress as proof of the religious motivation behind the act.

Newdow also said the daily recitation of the Pledge in public schools, as required by California law and policies of both school districts, is unconstitutional. Even though his daughter could choose not to say the pledge, Newdow says, she should not have to be seen as "an outsider" because of her religious beliefs.

"The differential treatment of atheists as compared with theists as it relates to the use of the words ‘under God’ in the now-sectarian Pledge violates the guarantees of Equal Protection inherent in the Fifth and Fourteenth Amendments," Newdow wrote.

Newdow asked the court to declare the 1954 Act unconstitutional and to demand changes in the Pledge, the California state law and the school district policies with regard to the current Pledge of Allegiance.

On July 21, 2000, U.S. District Judge Edward Schwartz dismissed the case, adopting the recommendation and opinion of Magistrate Judge Peter Nowinski. Nowinski cited prior cases that upheld the constitutionality of teachers leading willing students in the recitation of the Pledge.

In appealing to the 9th Circuit Court of Appeals, Newdow argued that the district court judges failed to adequately put the Act of 1954 to the traditional tests used when determining a violation of the Establishment clause, especially the three-prong test enunciated in 1971 in Lemon v. Kurtzman, which remains the linchpin in Establishment Clause jurisprudence.

"According to Lemon, the Act of 1954 violates the Establishment Clause of the First Amendment in about as blatant a manner as can possibly be imagined," Newdow wrote in his appeals court brief.

The school district defendants countered that the inclusion of the phrase "under God" in the Pledge is not an endorsement of religion, but part of a patriotic gesture and has been found to be constitutional in prior cases.

On June 26, 2002, in an opinion written by Judge Alfred Goodwin, a divided 9th Circuit panel reversed.

"We hold that (1) the 1954 Act adding the words "under God" to the Pledge, and (2) [the district’s] policy and practice of teacher-led recitation of the Pledge, with the added words included, violate the Establishment Clause," Goodwin wrote.

"In the context of the Pledge, the statement that the United States is a nation 'under God' is an endorsement of religion. It is a profession of a religious belief, namely, a belief in monotheism," the opinion reasoned. "To recite the Pledge is not to describe the United States; instead, it is to swear allegiance to the values for which the flag stands: unity, indivisibility, liberty, justice, and-since 1954- monotheism."

Goodwin rejected the argument that the pledge, as now written, is neutral as to religion.

"A profession that we are a nation 'under God' is identical, for Establishment Clause purposes, to a profession that we are a nation 'under Jesus,' a nation 'under Vishnu,' a nation 'under Zeus,' or a nation 'under no god,' because none of these professions can be neutral with respect to religion," wrote Goodwin. "The flaw in the defendants' argument is that it looks at the text of the Pledge 'as a whole,' and glosses over the 1954 Act."

Judge Ferdinand Fernandez concurred in part and dissented in part: "My reading of the stelliscript suggests that upon Newdow’s theory of our Constitution, accepted by my colleagues today, we will soon find ourselves prohibited from using our album of patriotic songs in many public settings…And currency beware!"

On Feb. 28, 2003, the 9th Circuit panel’s opinion was amended to deny all petitions for rehearing by the full 9th Circuit. Six of the 24 judges on the 9th Circuit dissented to the denial for rehearing.

In the dissent, written by Judge Diarmuid O’Scannlain, those judges called the panel’s judgment holding the Pledge unconstitutional indefensible, "an exercise in judicial legerdemain, which, not surprisingly, produced a public outcry across the nation," and "wrong, very wrong – wrong because reciting the Pledge of Allegiance is simply not a ‘religious act’ as the two-judge majority asserts, wrong as a matter of Supreme Court precedent properly understood, wrong because it set up a direct conflict with the law of another circuit, and wrong as a matter of common sense."

On Oct. 14, 2003 the U.S. Supreme Court accepted review of the case, limited to the two questions cited above.

Justice Antonin Scalia recused himself from consideration of the petition after Newdow filed a recusal request based on news accounts that Scalia had publicly voiced his disapproval of the 9th Circuit Court’s decision.

Amicus briefs were filed by more than a dozen organizations, including the U.S. Solicitor General on behalf of the United States, suggesting the enormous impact the Court’s decision will have on all citizens of the United States.

At oral arguments on March 24, 2004, Newdow represented himself, telling the justices that the pledge as conducted in public schools is more like a prayer than school exercise.

"I am an atheist. I don't believe in God," he said. "My daughter is asked to stand up and say her father is wrong."

At one point, the gallery applauded, in such stark contrast to Court decorum that Chief Justice William Rehnquist admonished the public that if applause erupted again, he would clear the courtroom.

The clapping came in response to Newdow's retort to Rehnquist's observation that because the vote in Congress in 1954 to add the words "under God" to the pledge was unanimous, it did not appear to be a divisive issue then.

"That's only because no atheist can get elected to public office," Newdow said.

The arguments addressed the issue of how the pledge with its invocation of God can be distinguished from other governmentally-sanctioned invocations such as the singing of "God Bless America" in classrooms, the use of "In God We Trust" on U.S. currency, and the Court's own opening invocation, "God save the United States and this honorable Court."

Justice David Souter observed that the pledge's invocation may be considered "so tepid, so diluted, so far from a compulsory prayer that it should in effect be beneath the constitutional radar."

Not to Newdow who told the justices: "When I see the flag and think of the Pledge of Allegiance, it's like I'm getting slapped in the face every time."

A considerable portion of oral argument time also addressed the issue of standing. Newdow is the noncustodial parent of his daughter; the mother informed the Court in a brief that she is giving her daughter a religious upbringing and wants her to say the pledge with "under God."

On June 14, 2004, the Court unanimously reversed the 9th Circuit judgment, leaving the Pledge with the words "under God" intact.

The lead opinion, written by Justice John Paul Stevens did not address the issue of the Establishment Clause; instead holding that because California law deprives Newdow of the right to sue as next friend, he lacks standing to challenge the school district’s policy in federal court.

The opinion was 8-0 because Justice Antonin Scalia had recused himself from the case. Three of the justices -- Justice Sandra Day O'Connor, Clarence Thomas and Chief Justice William Rehnquist -- wrote in concurrences that they would have reached the merits, and held that the Pledge with the words "under God" did not create an unconstitutional establishment of religion.

In resolving the case as one of standing, Stevens noted that the Court has often declined to intervene in cases in which the realm is one of domestic relations, and then went on to conclude that it was improper for the federal courts to entertain a claim by Newdow, whose standing to sue was founded on family law rights that were in dispute when the suit may have an adverse effect on the person who is the source of his claimed standing, namely his daughter. In so concluding, Stevens was concerned that Newdow wished to "forestall his daughter’s exposure to religious ideas that her mother, who wields a form of veto power, endorses, and to use his parental status to challenge the influences to which his daughter may be exposed in school when he and [the mother] disagree."

Chief Justice Rehnquist was direct in criticizing the manner in which the Court resolved the case.

"The Court today erects a novel prudential standing principle in order to avoid reaching the merits of the constitutional claim." he wrote in concurring. "Although the Court may have succeeded in confining this novel principle almost narrowly enough to be, like the proverbial excursion ticket–good for this day only–our doctrine of prudential standing should be governed by general principles, rather than ad hoc improvisations."

On the merits, Rehnquist consulted history dating back to George Washington’s first inauguration on April 30, 1789, to reach his conclusion that the phrase "under God" in the Pledge seems "to sum up the attitude of the Nation’s leaders, and to manifest itself in many of our public observances," many of which invoked God.

"Reciting the Pledge, or listening to others recite it, is a patriotic exercise, not a religious one; participants promise fidelity to our flag and our Nation, not to any particular God, faith, or church," he wrote. "There may be others who disagree, not with the phrase 'under God,' but with the phrase 'with liberty and justice for all.' But surely that would not give such objectors the right to veto the holding of such a ceremony by those willing to participate."

Though Justice Sandra Day O'Connor agreed with the Chief Justice's historical perspective, she added that four factors helped her conclude that the phrase "under God" in the Pledge constitutes nothing more than an instance of "ceremonial deism." The factors she considered were history and ubiquity (as Rehnquist did), the absence of worship or prayer in the Pledge, the absence of reference to any particular religion, and the minimal religious content in the words.

Calling Newdow’s challenge "well-intentioned," she nonetheless concluded that "his distaste for the reference to 'one Nation under God,' however sincere, cannot be the yardstick of our Establishment Clause inquiry....It would be ironic indeed if this Court were to wield our constitutional commitment to religious freedom so as to sever our ties to the traditions developed to honor it."

In his concurrence, Justice Clarence Thomas went a different route in reaching the same judgment that the Pledge may stand as is.

"I would take this opportunity to begin the process of rethinking the Establishment Clause," Thomas wrote. "I would acknowledge that the Establishment Clause is a federalism provision, which...resists incorporation [into the 14th Amendment].

In so writing, Thomas distinguished the Establishment Clause from the Free Exercise Clause, which clearly protects an individual right, and applies against the states through the 14th Amendment.

"But the Establishment Clause is another matter," he wrote. "The text and history of the Establishment Clause strongly suggest that it is a federalism provision intended to prevent Congress from interfering with state establishments. Thus, unlike the Free Exercise Clause, which does protect an individual right, it makes little sense to incorporate the Establishment Clause. In any case, I do not believe that the Pledge policy infringes any religious liberty right that would arise from incorporation of the Clause. Because the Pledge policy also does not infringe any free-exercise rights, I conclude that it is constitutional."