Court keeps 'under God' in Pledge

It rules that the California father who brought the case doesn't have legal standing.

By , Staff writer of The Christian Science Monitor

The California atheist who took his battle against the words "under God" in the Pledge of Allegiance all the way to the US Supreme Court should have never gotten into a federal courthouse in the first place.

Instead, his potential blockbuster constitutional law case fizzled away Monday when the nation's highest court ruled that he lacks the necessary legal standing to challenge the Pledge as a violation of the separation of church and state. The action, coming coincidentally on Flag Day, means that schoolchildren nationwide can continue to recite the Pledge of Allegiance to the Flag, including the words "under God."

In the end, the court may have opted for the most pragmatic route. "It is a way out for the court," says Douglas Laycock, a law professor at University of Texas at Austin. "It was politically impossible to strike it down, and legally impossible to uphold it."

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Some legal experts are expressing disappointment that the high court declined to address the broader issue, and many say the decision sets the stage for yet another church-state showdown.

"The justices ducked this constitutional issue today, but it is likely to come back in the future," says the Rev. Barry Lynn, executive director of Americans United for Separation of Church and State.

Michael Newdow filed suit in objection to his daughter's participation in teacher-led recitation of the Pledge at her elementary school in the Elk Grove school district in California.

In an anticlimactic ending to what would have been a landmark case, the nation's highest court ruled 5 to 3 that Mr. Newdow did not have legal authority to file the lawsuit.

Writing for the majority, Justice John Paul Stevens said the US Supreme Court must defer to California domestic court decisions that gave exclusive power to the mother of Newdow's daughter to file such a case.

"This case concerns not merely Newdow's interest in inculcating his child with his views on religion, but also the rights of the child's mother as a parent," Justice Stevens writes. "Most important, it implicates the interests of a young child who finds herself at the center of a highly public debate over her custody, the propriety of a widespread national ritual, and the meaning of our Constitution."

Joining Justice Stevens were Justices Anthony Kennedy, David Souter, Ruth Bader Ginsburg, and Stephen Breyer. Justice Antonin Scalia recused himself from the case because of prior public comments he made criticizing an earlier ruling in the case.

Chief Justice William Rehnquist and Justices Sandra Day O'Connor and Clarence Thomas concurred in the outcome but said they would have reached the merits of the case and upheld the Pledge of Allegiance.

"There is no doubt that [Newdow] is sincere in his atheism and rejection of a belief in God," Chief Justice Rehnquist writes. "But the mere fact that he disagrees with this part of the Pledge does not give him a veto power over [recitation of the Pledge]."

By deciding the case based on the standing issue alone, the majority justices avoided addressing the broader and potentially more problematic issue in Newdow's case - whether school recitation of the Pledge amounts to an unconstitutional endorsement of religion by the government.

Despite the apparent dodge, some legal analysts say they are pleased with the broader outcome - that all earlier rulings by the San Francisco-based Ninth US Circuit Court of Appeals declaring the Pledge policy unconstitutional are reversed.

"The Supreme Court has removed a dark cloud that has been hanging over one of the nation's most important and cherished traditions," says Jay Sekulow of the American Center for Law and Justice.

At issue in determining standing was whether Newdow, who is not married to his daughter's mother and who does not live with his daughter, had a recognizable legal stake that entitled him to object to the Pledge policy at his daughter's school.

The mother, Sandra Banning, says neither she nor her daughter objects to participating in the Pledge of Allegiance.

The Ninth Circuit had ruled that a non-custodial parent, like Newdow, has the right to challenge government policies that affect his or her child and are presumptively unconstitutional.

The Supreme Court disagreed.

The majority justices ruled that Newdow's legal standing turns on his parental status as defined by California domestic relations laws. Newdow has a right to instruct his daughter in his religious views, the court says. But Stevens adds, "The California cases simply do not stand for the proposition that Newdow has a right to dictate to others what they may and may not say to his child respecting religion."

The decision dismisses Newdow's lawsuit. In it he had objected to his daughter being subjected to teacher-led recitation of the Pledge of Allegiance every morning under a statewide policy.

He argued that the federal law that added the words "under God" to the Pledge - which Congress passed 50 years ago to the day - converted it into an impermissible endorsement of religion by the government.

In June 2002, a panel of Ninth Circuit judges agreed with Newdow. By a 2-to-1 vote the panel ruled that the modified Pledge was an unconstitutional endorsement of religion.

Eight months later, the panel dropped its endorsement finding and narrowed its ruling by focusing instead on California's policy of teacher-led recitation of the Pledge. The appeals court panel ruled that requiring teachers to lead students in reciting the words "under God" as part of the Pledge converted a daily profession of patriotism into a coerced religious act.

If upheld by the high court, the panel's ruling on the Pledge issue would have made it unconstitutional for teachers in California and 43 other states with similar policies to lead their students in reciting the Pledge as long as the words "under God" were included in it.

Under a Supreme Court ruling issued in 1943, public school students may not be required to stand and repeat the Pledge of Allegiance. Supporters of the Pledge said this decision suggests that those who object to the word "God" in the Pledge may choose to not repeat the Pledge or simply not repeat the word "God" in the Pledge.

The appeals court rejected the reasoning of the 1943 ruling, saying that just the act of performing the Pledge in the presence of any objecting students was a form of impermissible coercion to participate in a government-authorized religious act. The appeals court applied the neutrality rationale used by the high court in 1992 to strike down the offering of a prayer at public middle school graduation ceremonies.

David T. Cook and Elizabeth Armstrong contributed to this report.

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