‘Under God’ remains in Pledge

The Pledge of Allegiance can remain in public schools for now, the Supreme Court said yesterday, reversing on a technicality a 2002 9th Circuit Court of Appeals ruling that the words “under God” are unconstitutional.

Released on Flag Day and on the 50th anniversary of the 1954 vote in Congress to add the words “under God” to the Pledge, the justices said Michael Newdow, an atheist, did not have legal standing to sue on behalf of his 10-year-old daughter.

Mr. Newdow, who chose the highly unusual route of arguing the case himself before the court March 24, said in his suit against California’s Elk Grove United School District that the words “under God” constitute a form of religious indoctrination for his fourth-grade daughter.

Justice John Paul Stevens, joined by Justices Ruth Bader Ginsburg, Anthony M. Kennedy, David H. Souter and Stephen G. Breyer, ruled that Mr. Newdow’s rights do not trump those of the mother, Sandra Banning, who has legal custody of the daughter.

Miss Banning, who says her daughter likes reciting the Pledge, is a born-again Christian who wants the girl brought up in the same faith.

“The California cases,” the opinion said, “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.”

Chief Justice William H. Rehnquist, along with Justices Clarence Thomas and Sandra Day O’Connor, argued that Mr. Newdow had the legal right to bring the case, but said his premise — that the Pledge is unconstitutional — was flawed. Justice Antonin Scalia had recused himself from the case because of a private speech he made expressing his views.

“Reciting the Pledge, or listening to others recite it, is a patriotic exercise, not a religious one,” Chief Justice Rehnquist wrote. “Participants promise fidelity to our flag and our nation, not to any particular God, faith or church.”

The mere fact that Mr. Newdow disagrees with the words “under God,” Chief Justice Rehnquist wrote, “does not give him a veto power over the decision of the public schools that willing participants should pledge allegiance to the flag in the manner prescribed by Congress.”

Likewise, he said, Americans who disagree with other parts of the Pledge, such as “liberty and justice for all,” do not have the right to veto its recitation by those willing to participate.

Schoolchildren are allowed to abstain from saying the Pledge, Justice Rehnquist added, but “to give the parent of such a child a sort of ‘heckler’s veto’ over a patriotic ceremony willingly participated in by other students, simply because the Pledge of Allegiance contains the descriptive phrase ‘under God,’ is an unwarranted extension of the establishment clause.”

Both sides of the case expressed disappointment that the high court did not rule on the constitutionality of the Pledge.

“We had hoped they would rule on the merits of the case, and I understand there is the possibility the case might come before us again,” Miss Banning said. She still called the decision “a great victory.”

“We are really excited,” she said. “After two years, I am glad the decision is out and we still get to recite the Pledge with the words ‘under God.’ We argued all along it was not a prayer.”

Mr. Newdow did not return a telephone call seeking comment.

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