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News: Supreme Court Dismissed Pledge Case

By June 16, 2004

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The United States Supreme Court has delivered a decision on Michael Newdow’s challenge to the phrase “under God” in the Pledge of Allegiance: they dismissed it on a technicality and ruled that Newdow didn’t have “standing” to challenge the Pledge in the first place. (Several updates have been added to this - be sure to check out what's new).

The concept of “standing” is an important one in constitutional law. It allows for the dismissal of frivolous lawsuits, but it also allows for the dismissal of important cases that would be politically inconvenient to deal with. To put it simply, the only way you can sue the government to halt an activity that you claim is unconstitutional is if you can demonstrate that you have been harmed by it. If you can, then you have standing. If you can’t, then you don’t have standing. (The issue is a little more complex than that because in addition to harm, you have to be able to show that the government actions caused the harm and that it’s possible for the courts to provide relief).

To use an example relevant to the current case: a parent can’t sue to stop unconstitutional activity in a school if that person doesn’t live in the school district. Only a teacher in the school, a parent of a child in the school, or perhaps a local taxpayer can sue because they all can argue that the unconstitutional activity harms them in some way. A person who lives somewhere else can’t demonstrate any harm.

What this means, of course, is that even if a blatantly unconstitutional activity is going on, it won’t be stopped unless someone being harmed steps forward to complain and make a challenge. If no one does that — for example if no one actually minds or if those who mind are too intimidated — then the activity will probably continue.

Is Michael Newdow harmed in any way by the inclusion of the phrase “under God” in the Pledge of Allegiance? It looks like the Supreme Court has ruled that he wasn’t. One can have some sympathy for such a conclusion because it may be hard for the average person to see how anyone is harmed by this phrase. After all, no one has to say it, right? On the other hand, most non-Christians and quite a large number of Christians would find the parallel phrase “under Jesus” to be objectionable and would allege that they are harmed. Most Christians and non-Christians would object to phrases like “under Zeus” or “under Shiva.”

Why? Where is the harm? When the government informs the public that it is even merely preferable that an official, public expression of patriotism be accompanied by a religious affirmation, then it also informs the public that those who will not or cannot recite that affirmation are somehow less patriotic and less deserving of inclusion in the nation. The Supreme Court has previously indicated that the government may not signal that a person’s status or position in the community is in any way dependent upon their religious beliefs. That is only right and proper.

The official inclusion of “under God” in the Pledge of Allegiance, however, does exactly that. It’s not a problem if and why people choose to include it on their own, just as they can say “under Jesus” if they wish. The government, however, doesn’t have the authority to even recommend that citizens say such a thing.

I’ll make updates to this post as information comes in. In the meantime, be sure to check out the sites resources on the Pledge of Allegiance: Newdow vs. U.S. Congress (analysis of the original decision), Pledge of Allegiance News (extensive coverage of the case and the debate), Pledge of Allegiance & God (Is America a Christian Nation?), Pledge of Allegiance & Jehovah’s Witnesses (history and aftermath of their case against the required recitation of the Pledge)


Update #1: CNN is now reporting, as I suspected, that “The court said the atheist could not sue to ban the pledge from his daughter's school and others because he did not have legal authority to speak for her.” Justice John Paul Stevens apparently wrote the decision and is quoted as saying:

"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.”

If they wanted to “stay their hand,” they could have simply let the Ninth Circuit Court decision stand. Instead, by ruling that Newdow did not have standing, they did “reach out” — but in a manner that allowed them to avoid making any “weighty” decisions.

Stevens did not say anything about whether the phrase “under God” was constitution, but Chief Justice William H. Rehnquist wrote a concurring opinion to say that the current wording of the Pledge does not violate the Constitution. Justices Sandra Day O'Connor and Clarence Thomas joined this concurrence. That’s three justices voting against Newdow’s argument, suggesting that five would have voted in favor of Newdow’s argument (unless they took this opportunity to avoid saying what they think). Thus it is possible that had they not decided to “punt” in this manner, Newdow stood a good chance of winning.


Update #2: I’ve read through the decisions and have some quotes from the dissents which argue that the phrase “under God” was a constitutional addition to the Pledge of Allegiance.

Rehnquist writes:

I do not believe that the phrase “under God“ in the Pledge converts its recital into a “religious exercise“ of the sort described in Lee. Instead, it is a declaration of belief in allegiance and loyalty to the United States flag and the Republic that it represents. The phrase “under God“ is in no sense a prayer, nor an endorsement of any religion, but a simple recognition of the fact noted in H. R. Rep. No. 1693, at 2: “From the time of our earliest history our peoples and our institutions have reflected the traditional concept that our Nation was founded on a fundamental belief in God.“ Reciting the Pledge, or listening to others recite it, is a patriotic exercise, not a religious one; participants promise fidelity to our flag and our Nation, not to any particular God, faith, or church.

Rehnquist is arguing that the Pledge of Allegiance is a recognition of the history of religious belief in America. This has been dealt with quite well by Douglas Laycock:

It doesn't say anything about what the founders believed or what they were thinking. It's in the present tense. It's in the first person. It is what I, the student, believe today about the relationship between this nation and God. That's what's so troubling about it. "One nation under God" does not talk about history. It talks about theology and the relation of this nation today to God today and it does say we're under, that is a particular kind of God. I don't think that's going to trouble the Court much because it doesn't eliminate many conceptions of God, but it does eliminate some, as I said. But it's hard to talk about God without talking about some conception of God. It's impossible to be truly neutral in God-talk because humans have evolved too many radically diverse understandings of God.

O’Connor writes:

The Court has permitted government, in some instances, to refer to or commemorate religion in public life. ... While the Court‘s explicit rationales have varied, my own has been consistent; I believe that although these references speak in the language of religious belief, they are more properly understood as employing the idiom for essentially secular purposes. One such purpose is to commemorate the role of religion in our history. In my view, some references to religion in public life and government are the inevitable consequence of our Nation‘s origins.

O’Connor is taking the position that while religious language is being used, the purpose and meaning are essentially secular now. I think that the fervent supporters of the use of the phrase “under God” would be surprised to find that these words have a secular purpose. Again, Laycock writes:

Here is a quote from the government's brief: "What it really means is, I pledge allegiance to one nation, founded by individuals whose belief in God gave rise to the governmental institutions and political order they adopted, indivisible, with liberty and justice for all." Now if that were what it means, if anybody thought that was what it meant, we would not have had the great political outcry in response to the Ninth Circuit's decision. If people want to get mad about this because it had some recital about what the founders believed, or because of the other point the government makes – that it's in reference to historical and demographic facts that most Americans over time have believed in God – that would be one thing. But people don't get angry at a recital of historical and demographic facts. People get angry because they know what it means; it's plain English. They believe what it means, they want people to say what it means, they want their kids to say what it means.

Justice Thomas‘ decision is far more interesting. He writes:

The Establishment Clause provides that “Congress shall make no law respecting an establishment of religion.“ ... As a textual matter, this Clause probably prohibits Congress from establishing a national religion. ... Perhaps more importantly, the Clause made clear that Congress could not interfere with state establishments, notwithstanding any argument that could be made based on Congress‘ power under the Necessary and Proper Clause. Nothing in the text of the Clause suggests that it reaches any further. The Establishment Clause does not purport to protect individual rights. By contrast, the Free Exercise Clause plainly protects individuals against congressional interference with the right to exercise their religion, and the remaining Clauses within the First Amendment expressly disable Congress from “abridging [particular] freedom[s].“
Quite simply, the Establishment Clause is best understood as a federalism provision - it protects state establishments from federal interference but does not protect any individual right. These two features independently make incorporation of the Clause difficult to understand. The best argument in favor of incorporation would be that, by disabling Congress from establishing a national religion, the Clause protected an individual right, enforceable against the Federal Government, to be free from coercive federal establishments. Incorporation of this individual right, the argument goes, makes sense. ... But even assuming that the Establishment Clause precludes the Federal Government from establishing a national religion, it does not follow that the Clause created or protects any individual right. For the reasons discussed above, it is more likely that States and only States were the direct beneficiaries.
Moreover, incorporation of this putative individual right leads to a peculiar outcome: It would prohibit precisely what the Establishment Clause was intended to protect - state establishments of religion.

So, according to Supreme Court Justice Clarence Thomas, the Establishment Clause of the United States Constitution doesn’t protect any individual rights and should be read as protecting the right of individual states to have their own established churches and religions (presumably, if Congress were to establish a religion, that would serve to override the establishments of the separate states).

Think about this for a couple of minutes. A sitting Supreme Court Justice apparently believes that individual states should be able to have established churches and religion. Thus, if Virginia “established” the Lutheran Church and forces everyone to pay taxes in support of Lutheranism, no “individual rights” are being violated. A person might sue and win in Virginia’s courts, but if such a lawsuit were to reach the Supreme Court, Thomas might actually rule in favor of Virginia’s established Lutheranism.

How would you feel if your state established some church or religion over all others?


Update #3: I have read up a bit more on the reasoning behind the decision to deny standing to Michael Newdow. As My Way News reports:

The court said atheist Michael Newdow could not sue to ban the pledge from his daughter's school and others because he did not have legal authority to speak for her. Newdow is in a protracted custody fight with the girl's mother. He does not have sufficient custody of the child to qualify as her legal representative, the court said. ... "I may be the best father in the world," Newdow said shortly after the ruling was announced. "She 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."

If we imagine a case where a parent had no custody of a child whatsoever, then it would be reasonable to conclude that this parent didn’t have the legal authority to speak for her. That would be obvious in cases like medical care or the use of money. Newdow’s situation is a little more complicated — the girl’s mother doesn’t have sole custody, but when the two parents disagree on what is to happen with her the mother’s wishes are the deciding factor.

Thus, if the two disagreed on whether the girl should attend a Catholic school, the mother’s wishes would take precedence. Thus, the Supreme Court appears to have reasoned, Michael Newdow doesn’t have the legal authority to challenge something happening to his daughter. I can see how the two can be connected, but I’m not convinced that this conclusion is supported. If his daughter were hit by a car, would he not have the legal authority to initiate a lawsuit against the driver? That doesn’t seem reasonable.

I would allow that Newdow‘s situation is sufficiently complicated that it is reasonable to question whether he has standing and the circumstances allow one to take seriously the possibility that he doesn’t. I just don’t see, however, that the facts of the custody agreement require a court to conclude that Newdow doesn’t have the authority to bring suits like this.


Update #4: Reactions to the decision, both positive and negative, are coming in.

The American Center for Law and Justice has a press release:

"It really doesn't matter that the Supreme Court did not address the merits of the case," said Sekulow. "The fact is the legally flawed decision of the appeals court is removed and students across America can begin the new school year in the fall by reciting the Pledge of Allegiance including the phrase 'under God.' The high court had several ways it could have disposed of this troubling decision and we're delighted that the suit has been dismissed and the Pledge remains intact."

Notice how they imply that students wouldn’t have been able to include the phrase “under God” when reciting the Pledge if the Supreme Court had ruled in favor of Newdow? This is a tactic frequently used by the Christian Right: scare people by giving them the idea that if the government is prevented from endorsing something, then no one is even allowed to do it voluntarily. You’ll often see this used on the context of school prayer when people either imply or state outright that students aren’t allowed to pray when, in reality, the government is prohibited from leading prayers. Sure, it’s dishonest, but it’s easier than dealing with facts and reality.

The National Clergy Council will be celebrating the decision:

The National Clergy Council and Faith and Action, both of which submitted a brief to the Supreme Court supporting the words "under God" in the Pledge of Allegiance, will celebrate today's ruling against atheist challenger Michael Newdow by unfurling a two-story banner reading "50 Years Under God" on the front of their joint headquarters immediately across the street from the High Court. The banner will hang there for the next several months.

This is an ironic statement on the decision. When a clearly religious organization celebrates the decision with a banner that reads “50 Years Under God,” it becomes rather difficult to read the concurring decisions about the phrase “under God” not being a profession of religious belief and maintain a straight face... or maintain confidence in the intellectual honest of the people who still think that the phrase isn’t religious.

The American Humanist Association disagrees with the decision:

"This battle isn't over but, Humanists are sadly disappointed by the Supreme Court's decision to skirt the issue of including 'under God' in the Pledge," states Mel Lipman, president of the American Humanist Association (AHA). ... "The practice of reciting the Pledge in public schools specifically targets children, inculcating them with a monotheistic message not held by millions of Americans," adds Lipman. This is not a passive reading of a historic document but an active swearing of loyalty to one's country. When these words were added on June 14, 1954, exactly 50 years ago today, our national oath of loyalty became tantamount to prayer.

The Freedom From Religion Foundation also issued a statement:

"Newdow is absolutely correct in arguing that the Constitution requires neutrality in the public schools. The case law is on his side," noted Annie Laurie Gaylor of the Foundation. ... The Foundation amicus brief on behalf of Newdow had argued in part that any parent paying taxes to support a local public school ought to have sufficient standing to challenge First Amendment violations in those schools.

This wouldn’t be the first time that the Supreme Court ignored case law and past precedent in order to reach a more politically convenient decision.

Jason writes at Evolution Blog:

If the “under God” clause really were just a religiously neutral bit of ceremonial deism, why is there so much opposition to restoring the pledge to its pre-fifties version? Then there would be no opposition at all to having kids recite it. Ceremonial deism is not what inspires the entire Congress to recite the Pledge on the stairs in front of Congress.
The fact is that as it stands the Pledge is not just unconstitutional. It is blatantly, flagrantly and flamboyantly unconstitutional. The problem the courts face is how to pretend that what is obviously an endorsement of religion is actually something else. They can make up nonsense phrases like “ceremonial deism” and compile arbitrary lists of criteria for determining which religious invocations are religious and which are just ceremonial, but this is precisely the sort of judicial activism conservatives hate when the result goes against them.

In a previous post, Jason comments on O’Connor’s concurring opinion:

First off, it is sheer lunacy to argue that an invocation of God is not an endorsement of religion over non-religion. A request that God bless some particular event makes no sense unless it is based on the belief that God actually exists and occasionally blesses things. Such invocations of God are not meaningless phrases intended to indicate that what follows is meant to be very solemn.
Second, it is beyond me how publicly requesting God's blessing or asserting his existence can be construed as a way of encouraging the recognition of what is worthy of appreciation in society. And there are considerably more direct ways of expressing our confidence in the future than some vague reference to God.
Third, it is not clear to me how a “facially religious reference” is different from an invocation of divine provenance. And surely the ability of a religious reference to solemnize an event will depend on the religious beliefs of the person hearing the reference. To an atheist such an invocation is likely to trivialize an event. Solemnity can be achieved is many ways; to argue that religious references are required for such things shows a profound lack of imagination, to put it kindly.

He has a lot more to say that’s worth reading.


Update #5: Brian Leiter thinks that we were relatively lucky with this decision:

[H]appily, the opinion does no damage to Establishment Clause jurisprudence (which is a big enough mess already), and, at the same time, permits the Court to avoid a pointless, election-year firestorm over religion, that would only help the current criminal occupants of the White House. There's some encouraging news in this decision for those of us worried about the ambitions of the aspiring theocrats in the current Administration. The majority that opted for the "no standing" argument almost certainly concurred with the Laycock argument, and the original 9th Circuit argument, about the unconstitutionality of "under God" in the Pledge--that's why they opted for the procedural out.
This majority included four Justices who are predictable friends of religious minorities and the protections they are afforded by the Establishment Clause: Stevens, Breyer, Ginsburg, and Souter. But, importantly, it also included Kennedy, whose track record is more mixed, but his opting for the procedural out suggests that he drew the right conclusion on the substantive merits. Predictably, Rehnquist and Thomas thought the inclusion of "under God" in the Pledge was constitutional, and O'Connor, sadly, joined Rehnquist in this conclusion. (Their arguments don't bear much examination--it is a variation on the ever popular "since we've let slide the imposition of religion in public life on all these other occasions, we should let it slide now" argument, that always comes up on occasions like this.) Thomas, in solidifying his status on the lunatic fringe, argues that the Establishment Clause shouldn't even apply to the states.

There is a good point being made here:

Leiter also links to Professor Stephen Bainbridge at UCLA:

When it comes to the culture wars ... this Court line-up is usually to be found on the side of defining deviancy down. Hence, perhaps I should be relieved that in the Pledge case the court was merely AWOL... This case does illustrate why we conservatives must work hard for Bush no matter how annoyed or even disillusioned we become with him at times. We are losing the culture wars largely because of the Supreme Court's willingness to invoke the Constitution to effectuate the Justices' version of elite opinion and thereby creating what Justice Scalia calls "a country I do not recognize."

In other words, it’s simply awful that the Supreme Court did not rule that an official government affirmation of patriotism must be accompanied by a religious affirmation. I shudder to think at what he would have thought if the Court had ruled in favor of Newdow and made the official Pledge of Allegiance godless while allowing individuals to insert “under God” if and whey then choose. Such personal responsibility is, I suppose, not acceptable in a nation that he and Justice Scalia would recognize.


Update #6: What sort of message does this Supreme Court decision send to the nation? It is very possible that people will see a message that reaffirms for them the dominance and importance of Christianity.

Gary Scharrer writes in the El Paso Times:

"It's a good signal of what will happen -- and sometimes the court does things like that so a case won't be brought," [University of Texas at El Paso political scientist Robert Pallitto] said. "Folks reading between the lines here are going to say, 'If we try this again, we know what's going to happen, so we're not going to try it.'" Legal experts realize the court ruled only that the plaintiff did not have a right to file suit, but ordinary people will see headlines, Pallitto said. He suggested "the court has put its power behind Christianity and tried to affirm that we do have a Christian religious tradition in this country. They will see the bottom line -- that this was brought by an atheist, and he lost."
Bliss Elementary School Principal Mark Mendoza applauded the ruling. "We are one nation. It is a unifying experience," he said. "Anything that does that is a good thing."

It’s only unifying for those who believe that America is “One Nation Under God.” Those who don’t are necessarily excluded, something that should be obvious from the fact that a challenge was ever filed in the first place. I guess, though, that the fantasy-land that Mark Mendoza lives in is much more pleasant than the reality the rest of us have to contend with.

Nevertheless, the Pledge of Allegiance may be challenged again, as Cliare Cooper explains in the Sacramento Bee:

The next case could come from another state in the nine-state region covered by the San Francisco-based 9th U.S. Circuit Court of Appeals, which set up the Supreme Court test case by its ruling for Newdow. Or it could come from another region by plaintiffs gambling on a favorable ruling from another circuit. Or it could arise in the back yard of the last case. A publicly unidentified couple from Elk Grove attempted to intervene in Newdow v. Elk Grove Unified School District last year to force the constitutional issue and could now move to center stage.
Whatever its origin, constitutional experts predict a flop. "Somebody going in goes with a 4-0 handicap," said Vikram Amar, a constitutional authority at Hastings College of the Law in San Francisco. "Four justices have sent a message (in favor of the pledge), and no justice is on board in the other camp."
The four are Chief Justice William Rehnquist and Justices Sandra Day O'Connor and Clarence Thomas, all of whom issued opinions Monday, and Antonin Scalia, who removed himself from Newdow's case after expressing his negative opinion of it in a speech. Scalia, who is passionate on the subject, probably wouldn't make the same mistake twice.

Of course, if John Kerry wins the next presidential election he may have the opportunity to pick a couple of Supreme Court Justices and that could change the composition of the Court in a manner more favorable to a ruling against the phrase “under God.”

In a very different perspective on the case, Jeffery M. Leving and Glenn Sacks write in the Daily News about how this ruling affects the ability of non-custodial parents to stand up and fight for the rights of their children:

Elk Grove places children in harm's way by limiting the ability of noncustodial parents to use the legal system to protect a child if the custodial parent is unable or unwilling to do so. For example, in a pending Illinois case, a girl in elementary school suffers from a life-threatening medical condition that requires a medical procedure. The procedure, though standard, violates the custodial mother's religious beliefs. The girl's noncustodial father has gone to court to force the mother to accede to the lifesaving operation. Now, in the wake of Elk Grove, unless the father can win custody, the judge may be compelled to rule in favor of the mother, to the serious detriment of the child.
In another pending Illinois case, a noncustodial father seeks to take legal action both against a baby-sitter who allegedly molested his son and against the agency that placed his son in this baby sitter's care. However, the custodial mother, apparently because of her hostility toward the father, has refused to consent to filing the lawsuit. Under Elk Grove, unless the father can win a substantial modification of custody, the father has no standing to file the lawsuit without the mother's consent. As a result, his traumatized son may be deprived of a potential damages award needed to pay for therapy, and neither the baby sitter nor the agency will be held responsible.
Elk Grove will make it more difficult for noncustodial parents to hold negligent schools, day-care centers, priests, doctors, hospitals, sports coaches and others accountable for harming their children. The court's ruling also highlights the hypocrisy of the current public policy and discourse on fatherhood, wherein men are lectured to take responsibility for their children while at the same time courts and lawmakers frequently disregard their right to play a meaningful role in their children's lives.

The authors speculate that many more parents will be willing to engage in lengthy and damaging custody battles because, otherwise, their rights will be too severely curtailed. If the courts will ignore them unless they have a strong custody claim, this only makes sense — but it is likely to be more damaging to the children in the long run. Was the Elk Grove decision really in child’s best interest?


Update #7: One of the arguments Michael Newdow made when he stood before the Supreme Court was that atheists are outsiders in America and that the Pledge of Allegiance helps reinforce this by establishing the primacy of a religious affirmation. Commenting on the case in The Wall Street Journal, Samuel P. Huntington agrees:

Americans have always been extremely religious and overwhelmingly Christian. The 17th-century settlers founded their communities in America in large part for religious reasons. Eighteenth-century Americans saw their Revolution in religious and largely biblical terms. The Revolution reflected their "covenant with God" and was a war between "God's elect" and the British "Antichrist." ... Today, overwhelming majorities of Americans affirm religious beliefs. When asked in 2003 simply whether they believed in God or not, 92% said yes. In a series of 2002-03 polls, 57% to 65% of Americans said religion was very important in their lives, 23% to 27% said fairly important, and 12% to 18% said not very important. Large proportions of Americans also appear to be active in the practice of their religion. In 2002 and 2003, an average of 65% claimed membership in a church or synagogue. About 40% said they had attended church or synagogue in the previous seven days, and roughly 33% said they went to church at least once a week. In the same period, about 60% of Americans said they prayed one or more times a day, more than 20% once or more a week, about 10% less than once a week, and 10% never. Given human nature, these claims of religious practice may be overstated, but the extent to which Americans believe the right response is to affirm their religiosity is itself evidence for the centrality of religious norms in American society.

For some strange reason, though, Huntington seems to think that this justifies saying that the government is not and should not be secular in nature. Because most people in America are religious, the government should promote and endorse their religious views... but what religious views, exactly? Huntington doesn’t mention that, and with good reason: there are hardly any religious views which all Americans share and which the government could promote and endorse without controversy. Mere theism is about all that works and a primary response when that is challenged is to argue that something like “under God” isn’t really religious after all.

Huntington seems to think that when there is an absence of religious language in the government, then atheism is being “imposed” upon religious people. I’m sorry, but that’s just such a stupid position that I have trouble understanding how anyone as intelligent as Huntington is supposed to be could write such a thing and keep a straight face. The failure of the government to endorse theism is no more a means of imposing atheism than a failure to endorse belief in angels is a means of imposing non-belief in angels.

Huntington conveniently elides between two different meanings of “America is a religious nation.” In supporting his case that America is a religious nation, he cites all sorts of references to the fact that American people are religious — you can read some in the above quote. The question before the Supreme Court was not, however, whether individuals are religious but instead whether the government should promote and endorse any particular religious beliefs. In other words, the question is whether America should be a “religious nation” in the sense that national symbols, national mottoes, and the national government should be explicitly religious. Huntington does not and cannot argue that they should be. The mere fact that individual citizens have a Christian identity does not therefore mean that the government should have any sort of Christian identity.

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