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The U.S. Pledge of Allegiance

Appeal to the Supreme Court 2003-4


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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 during 2004.

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. 1


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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 ruling stand.
  • 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
  • Mister Thorne tried to raise money so that he can fund a brief in this case. See his letter which appealled for contributions.

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 school all 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 He writes:

"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." 5

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 constitutional.

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 court.

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 our nation."
  • 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"].
     

References:

  1. "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, 2003-JUL-4.

  2. 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: http://www.sacbee.com/

  3. Anne Gearan, "Supreme Court to Decide Pledge Case," Associated Press, 2003-OCT-14, at: http://story.news.yahoo.com/

  4. "Supreme Court agrees to hear Pledge of Allegiance Case: Scalia To Recuse Over Public Remarks," AA News, 2003-OCT-14.

  5. "Buddhist school children: required to say 'Under God'," The Pluralism Project Email list, 2004-OCT-21.

  6. 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:  kpierce@cwt.com. Web site:  www.cadwalader.com

  7. Status of the Elk Grove Unified School District v. Michael Newdow case before the U.S. Supreme Course can be found at: http://www.supremecourtus.gov/

  8. Anne Gearan, "Supreme Court Preserves 'God' in Pledge," Associated Press, 2004-JUN-14.

  9. "Supreme Court throws out Atheist's challenge of Pledge," CitizenLink, Focus on the Family, 2004-JUN-14.

  10. Conrad Goeringer, "Rally for the Case," AANews, 2004-JUN-24,

  11. "Update: Supreme Court announced decision on June 14," American Atheists, at: http://www.atheists.org/pledge/


How you got here:

 Home > Christianity > Prayer > School prayer > The Pledge > here

or: Home > Law menu > The Pledge > here


Copyright © 2002 to 2004 by Ontario Consultants on Religious Tolerance
Originally written: 2003-JUL-4
Latest update: 2004-JUN-15
Author: B.A. Robinson

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