Status of: Unified School District v. Newdow, Docket # 02-1624:
The Elk Grove Unified School
District -- the defendant in the Pledge case -- the U.S. Department
of Justice, and the plaintiff, Dr. Michael A. Newdow have all appealed the
9th U.S. Circuit Court of Appeals' decision to the U.S.
Supreme Court. The court announced on 2003-OCT-14 that it would hear the case
It is worth noting that the U.S. Supreme Court opens each session with the
phrase "God save the United States and this Honorable Court." If it
declares that "under God" in the latest version of the Pledge of
Allegiance is unconstitutional, then it would be almost certainly admitting
that it has acted unconstitutionally in its own procedures. This it would be
unlikely to do.
Appeal filed with the U.S. Supreme Court:
During the week of 2003-JUN-24, Dr. Newdow filed papers asking the U.S.
Supreme Court to review the case, and declare the religionized-version of
the Pledge of Allegiance to be unconstitutional. AA News reported that: "The
high court is expected to announce in October whether it will take up the
matter. It could hold a full review complete with arguments, or simply
strike down -- with or without comment -- the decision from the Ninth
Circuit Court panel." Writer Frank J. Murray of the Washington Times
newspaper wrote: "An unsigned opinion by the entire court summarily
denouncing the ruling in ringing terms would not be unprecedented..." Steve
Thomas, spokesperson for the American Legion has filed an amicus ("friend
of the court") brief supporting the "under God" version of the
Pledge. He said that the net effect of the Ninth Circuit ruling "is
that young people are denied the opportunity to recite the Pledge of
Allegiance." This appears to be a factual error, because the court
merely ruled that the 1954 version is unconstitutional when read in public
schools. Students were still free to recite the traditional, historical, pre-1954 wording
which omits the "under God" phrase. Also,
students and others outside public school classrooms were free to recite any version
that they wish.
Briefs filed with the U.S. Supreme Court:
As of late 2004-JAN, about 40 briefs have been filed. 7 Almost all favor inclusion of
the "Under God" phrase, although they give very
different interpretations to that phrase. Some
apparently believe that it recognizes the existence of God -- presumably the
Judeo-Christian God. Others maintain that it does not.
The School District says that the phrase affirms that the U.S. "was
founded on a fundamental belief in God," but the pledge takes no
position "with respect to the existence of God." It is unclear
how a person could acknowledge that the state is under God, while, at
the same time, believing that God does not exist.
Ten school boards have issued a joint brief stating that the pledge
helps introduce students to civic concepts that are developed as they
mature, laying the foundation for "a larger program of citizenship
training." While this appears to be true, it is unclear what their
rational is for inclusion of the "under God" phrase,
unless it is to teach a religious concept to the students. A side-effect
of the concept may be to throw the full weight of the federal government
behind belief in God and denigrate the beliefs of those who do not
believe in God.
Sandra Banning's brief states that the pledge "reflects the
democratic beliefs in a diverse society." Banning, the mother
of Dr. Banning's daughter, says she wants her daughter to appreciate "the
traditional recitation of the pledge." She appears to be unaware
that the "traditional" version -- pre-1954 -- of the pledge did
not include the "under God" phrase.
The Freedom from Religion organization supports the circuit
court ruling. They state that the "under God" phrase affronts "the
many loyal Americans who do not believe in or worship God." They
also feel that it "cheapens religion."
Americans United for Separation of Church and State also
support the lower court. They believe that to see "under God" as
a mere acknowledgment of beliefs would take "a very subtle
six-year-old." On the contrary, the organization argues, "children
are bound to perceive ('under God') as affirming a belief in the existence
of God and national subordination to God and as expressing commitment to
a nation defined by religious devotion." They are asking that the
Supreme Court not consider the case. This would have let circuit court's
The federal administration took a novel approach. They argued that the phrase "under God"
does not relate to religion. Rather, it is ceremonial and historical in
nature. Solicitor General Theodore Olson wrote that the phrase is an "official acknowledgment of our nation's
religious heritage." It is analogous to the "In God We Trust"
on U.S. coins and bills. In no way would "under God" impose a
state-sponsored religion. This argument would have much greater weight if
"God" had not been spelled in capitals. "God" normally refers to the
Judeo-Christian deity described in the Bible; "god" normally refers to
any deity. Olson also wrote that merely being a parent of a
student does not give that person the power to dictate school procedures.
He wrote: "Public schools routinely instruct students about evolution,
war and other matters with which some parent may disagree on religious,
political or moral grounds." The administration also claimed that
Newdow does not have status in the case because he does not have custody
of his daughter. 3
Dr. Newdow's hope is that the Court will hear the case and decide in
his favor. That would restore the pledge to its pre-1954 version
throughout all American public school classrooms. 2 He
has said: "Those who deny the existence of a supreme being have been turned
into second class citizens by a government that continuously sends
messages that 'real Americans' believe in God."
The Court's response:
On 2003-OCT-14, shortly after the end of their Fall recess, the Supreme Court
announced that it will accept the case. Observers believed that they would rule on whether the "under God" phrase which was
added to the Pledge of Allegiance in 1954 is unconstitutional because it
blends church and state.
Although the federal government, plaintiff Michael Newdow, and his daughter's
asked the Supreme Court to rule on the case, the court agreed only to hear the appeal from the school
district. The court also said it will evaluate whether Newdow
had the proper legal footing to bring the case.
Dr. Newdow planned to argue his case in person before the Supreme Court. 3
AA News commented: "If the case does come to argument,
Justin Antonin Scalia will reportedly recuse himself from proceedings. News
reports say that this is because of remarks he made earlier this year
critical of the lower court ruling in the pledge case. That raises the
possibility that the high court could deadlock 4-4 in U.S. v. Newdow, in
which case the Ninth Circuit ruling would stand." 4
Amicus Brief filed:
Ken Pierce of the law firm Cadwalader, Wickersham & Taft LLP
prepared an amicus (friend) brief to be submitted to the U.S. Supreme
Court on behalf of Buddhist temples and organizations in the U.S. The
firm is handling this matter on a "pro bono" basis (i.e., without
charging a fee). They welcomed any Buddhist temple, church, congregation or
organization to join the brief. 4
"The main point that is being asserted on behalf of those Buddhist
temples and organizations who join the brief is that Buddhist
schoolchildren who wish to say the Pledge and express their patriotism
and loyalty to the United States, should not have to say that this is a
nation 'under God.' The original version of the Pledge, drafted in 1892,
did not include the words 'under God.' Those words were added to the
Pledge of Allegiance in 1954 at the urging of various Christian groups
who wanted to tie patriotism with the notion that this is a 'Christian
country.' The Amicus Brief argues that the Pledge of Allegiance
presents a vision of a monotheistic Judeo-Christian country, and ignores
the fact that there a large number of Buddhist Americans who do
not adhere to monotheistic beliefs."
The brief was finalized before 2003-FEB-6.
Decision of the Supreme Court:
The U.S. Supreme Court heard the case in 2004-MAR. They handed down their
long-awaited ruling on 2004-JUN-14. The court found a way to avoid making a
ruling on the constitutionality of the "under God" addition to the
Pledge of Allegiance. They ruled that Michael Newdow did not have the
legal authority to speak for his daughter, and thus did not have standing to
bring a case before the courts. He and his former wife, Sandra Banning,
share custody of their daughter. However, Ms. Banning appears to have a
greater share in the girl's upbringing, and she does not object to the
phrase. The Justices voted 8 to 0 to reverse
the decision of the 9th U.S. Circuit Court of Appeals' decision. As
expected, Justice Scalia removed himself from considering the case. For now,
"under God" remains in the Pledge. Unfortunately, this move by the
U.S. Supreme Court does not answer the question of whether the addition is
Justice John Paul Stevens wrote the decision of the court. He said, in
part: "When hard questions of domestic relations are sure to affect the
outcome, the prudent course is for the federal court to stay its hand rather
than reach out to resolve a weighty question of federal constitutional law."
He mentioned that the full extent of the problems with the case were not
apparent until Sandra Banning, the girl's mother, filed papers with the
Chief Justice William H. Rehnquist agreed with the ruling, and wrote
separately to say that inclusion of "under God" in the pledge is
constitutional. Justices Sandra Day O'Connor and Clarence Thomas agreed with
him. That statement said in part: "Michael Newdow's...distaste for the
reference to 'one nation under God,' however sincere, cannot be the
yardstick of our Establishment Clause inquiry. Certain ceremonial references
to God and religion in our Nation are the inevitable consequence of the
religious history that gave birth to our founding principles of liberty. 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 may have been an intentional move by the court that they published the
ruling on Flag Day.
Reactions to the ruling:
There do not appear to be many individuals and groups who are pleased
with the decision of the Court:
Shortly after the ruling was handed down, Newdow said "I may be the
best father in the world...[my daughter] spends 10 days a month with me. The
suggestion that I don't have sufficient custody is just incredible. This is
such a blow for parental rights."
District Superintendent Dave Gordon of the Elk Grove Unified School was
disappointed with the ruling. He would have preferred that the Supreme Court
had decided the merits of the case "and settled it once and for all for
The Rev. Barry W. Lynn, of Americans United for Separation of Church
and State, said the court "ducked this constitutional issue today."
He feels that students "should not feel compelled by school officials to
subscribe to a particular religious belief in order to show love of country."
Jay Sekulow of the Fundamenalist Christian group American Center for
Law and Justice said: "While the court did not address the merits of
the case, it is clear that the Pledge of Allegiance and the words 'under
God' can continue to be recited by students across America." 8
Dr. James C. Dobson, founder and chairman of the Fundamentalist Christian
group Focus on the Family wrote:"The Supreme Court does
not emerge from this case the defender of America's moral and Christian
heritage. In fact, it showed a lack of principle that is truly appalling.
Instead of settling this question once and for all, the Court has left the
nation to wonder if God's name will be found unconstitutional if another
challenge is brought in a procedurally correct fashion."
Ben Bull, of the Alliance Defense Fund, which had filed briefs on
behalf of Focus on the Family, said that the court "dodged the
bullet." He is quoted as saying that: "We argued, first, that the 9th
Circuit had no grounds whatever to stand on; that the Pledge of Allegiance
was not even technically a prayer. It was simply a reaffirmation of the
patriotic and religious principles that the nation was founded on. And if
there were any problems that a particular student might have, that was cured
by an opt-out; in other words, a student did not have to feel compelled to
recite the Pledge if it violated his personal religious principles. What the
Court failed to do was to decide once and for all whether reciting the words
'under God' violates the Establishment Clause. That will open up a Pandora's
Box of litigation over the next couple of years, when one of these cases
will meander back to the Supreme Court and the Court will deal with this
once and for all." 9
American Atheists wrote: "The net effect of today's
decision (can it even be called that?) on the part of our nation's
Atheists, Freethinkers, Secular Humanists and other nonbelievers is, in
part, outrage and frustration. Newdow 'played by the rules.' He took
his case step-by-step through the legal system, revising and fine-tuning
his briefs right up until the day he argued his case with passion and
elan in front of the Supreme Court of the United States. It was clearly
a moment in history. By turning down Dr. Newdow on the standing issue,
however, the justices have ducked their responsibility to decide what is
admittedly a vexing constitutional problem. They have also given a
metaphorical slap in the face to millions of Americans who profess no
religion. SCOTUS has said, in effect, 'Your concerns are of so little
worth that we choose not to even acknowledge them'." ["SCOTUS"
is an acronym for "Supreme court of the United States"].
"Newdow, opponents petition high court in Pledge case:
Atheist Asks Justices To Widen Scope Of Decision. O'Reilly: Newdow 'May Be
Most Despised Man In America'." -- Sound Familiar?" AANews,
Claire Cooper, "Does 'under God' do justice to all?
Briefs before high court show Americans divided over pledge," The
Sacramento Bee, 2003-SEP-29, at:
"Supreme Court agrees to hear Pledge of Allegiance
Case: Scalia To Recuse Over Public Remarks," AA News, 2003-OCT-14.
"Buddhist school children: required to say 'Under God',"
The Pluralism Project Email list, 2004-OCT-21.
Ken Pierce and Paul Grosswald can be reached at
Cadwalader, Wickersham & Taft LLP, 100 Maiden Lane, New York, NY 10038.
Tel: 212.504.6000. Direct: 212.504.6813. Fax: 212.504.6666. Email:
[email protected]. Web site: