- The Washington Times - Tuesday, June 15, 2004

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.

The Rev. Barry W. Lynn, executive director of Americans United for Separation of Church and State, said the justices had “ducked” the issue, which he predicted would resurface in the federal courts.

“Students should not feel compelled by school officials to subscribe to a particular religious belief in order to show love of country,” he said. “America is increasingly diverse in matters of religion, and our public schools should reflect that diversity.”

Phil Pucillo, a law professor at Ave Maria Law School in Ann Arbor, Mich., disagreed, predicting the Pledge will not be argued again before the Supreme Court.

“You have three justices who say the Pledge is constitutional,” he said. Had the court ruled against the Pledge, justices “knew the public reaction would have been furious,” he added.

“The liberals on the court were sensitive to that possibility,” he said. “It looked like they were bending over backwards to get rid of the lower court decision and not deal with the issue.”

Miss Banning has formed the One Nation Under God Foundation to prevent the case being argued again in another form.

“We will assemble the best legal teams available and pay for the expenses to undertake these types of challenges,” said her attorney, Paul Sullivan. “We fully anticipate another group out there will find a person with appropriate standing to allow the court to address the merits of the case [that] won’t be entangled with a custody hearing.”

In other decisions released yesterday, the Supreme Court:

• Ordered a lower court to determine whether Holocaust survivors and heirs could sue the French national railroad for transporting 72,000 Jews and others to Nazi concentration camps during World War II.

• Said Arizona taxpayers have constitutional grounds to sue in federal court on claims that the state’s income-tax credits, granted for donating money to private school education, might improperly promote religion.

• Ruled that a former dispatcher for the Pennsylvania State Police can sue over sexual harassment even though she quit her job. However, the justices sent the case back to a lower court, saying the agency did not have an adequate opportunity to defend itself.

• Agreed to consider whether police in Simi Valley, Calif., went too far in questioning an unarmed woman and searching her home. The home was thought to be occupied by members of the West Side Locos gang, including a man suspected in a shooting.

• Declined to consider an appeal in which former U.S. hostages in Iran say a $33 billion lawsuit over their detention and torture more than 20 years ago should be reinstated.

• This article is based in part on wire service reports.

Copyright © 2018 The Washington Times, LLC. Click here for reprint permission.

The Washington Times Comment Policy

The Washington Times welcomes your comments on Spot.im, our third-party provider. Please read our Comment Policy before commenting.


Click to Read More and View Comments

Click to Hide