The Supreme Court preserved the phrase “one nation, under God,” in the Pledge of Allegiance, ruling Monday that a California atheist could not challenge the patriotic oath but sidestepping the broader question of separation of church and state.
At least for now, the decision — which came on Flag Day — leaves untouched the practice in which millions of schoolchildren around the country begin the day by reciting the pledge.
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. Eight justices voted to reverse a lower court ruling in Newdow’s favor.
Justice Antonin Scalia removed himself from participation in the case, presumably because of remarks he had made that seemed to telegraph his view that the pledge is constitutional.
“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,” Justice John Paul Stevens wrote for the court.
“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.”
The 10-year-old’s mother, Sandra Banning, had told the court she has no objection to the pledge. The full extent of the problems with the case was not apparent until she filed papers at the high court, Stevens wrote Monday.
Chief Justice William H. Rehnquist agreed with the outcome of the case, but still wrote separately to say that the pledge as recited by schoolchildren does not violate the Constitution. Justices Sandra Day O’Connor and Clarence Thomas agreed with him.
The ruling came on the day that Congress set aside to honor the national flag. The ruling also came exactly 50 years after Congress added the disputed words “under God” to what had been a secular patriotic oath.
The high court’s lengthy opinion overturns a ruling two years ago that the teacher-led pledge was unconstitutional in public schools. That appeals court decision set off a national uproar and would have stripped the reference to God from the version of the pledge said by about 9.6 million schoolchildren in California and other western states.
Newdow’s daughter, like most elementary school children, hears the Pledge of Allegiance recited daily.
The First Amendment guarantees that government will not “establish” religion, wording that has come to mean a general ban on overt government sponsorship of religion in public schools and elsewhere.
The Supreme Court has already said that schoolchildren cannot be required to recite the oath that begins, “I pledge allegiance to the flag of the United States of America.”
The court has also repeatedly barred school-sponsored prayer from classrooms, playing fields and school ceremonies.
White House argued against Newdow
The 9th U.S. Circuit Court of Appeals said the language of the First Amendment and the Supreme Court’s precedents make clear that tax-supported schools cannot lend their imprimatur to a declaration of fealty to “one nation under God.”
The Bush administration, the girl’s school and Newdow all asked the Supreme Court to get involved in the case.
The administration had asked the high court to rule against Newdow, either on the legal question of his ability to sue or on the constitutional issue. The administration argued that the reference to God in the pledge is more about ceremony and history than about religion.
The reference is an “official acknowledgment of our nation’s religious heritage,” similar to the “In God We Trust” stamped on coins and bills, Solicitor General Theodore Olson argued to the court.
It is far-fetched to say such references pose a real danger of imposing state-sponsored religion, Olson said.
Newdow claims a judge recently gave him joint custody of the girl, whose name is not part of the legal papers filed with the Supreme Court.
Newdow holds medical and legal degrees, and says he is an ordained minister. He argued his own case at the court in March.
The case began when Newdow sued Congress, President Bush and others to eliminate the words “under God.” He asked for no damages.
On Monday, Newdow said he would continue that fight.
“The pledge is still unconstitutional,” he said. “What is being done to parents is unconstitutional.”
At a Sacramento, Calif., news conference, Elk Grove Unified School District Superintendent Dave Gordon called the pledge “a unifying, patriotic exercise that reflects the historical ideals upon which this great country was founded.”
He said he’d have preferred that the Supreme Court had decided the merits of the case “and settled it once and for all for our nation.”
Newdow had numerous backers at the high court, although they were outnumbered by legal briefs in favor of keeping the wording of the pledge as it is.
Both sides react
The Rev. Barry W. Lynn, executive director of Americans United for Separation of Church and State, said he is disappointed.
“The justices ducked this constitutional issue today, but it is likely to come back in the future,” Lynn said. “Students should not feel compelled by school officials to subscribe to a particular religious belief in order to show love of country.”
On the other side, the American Center for Law and Justice said the ruling removes a cloud from the pledge.
“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,” said Jay Sekulow, the group’s chief counsel.
Congress adopted the pledge as a national patriotic tribute in 1942, at the height of World War II. Congress added the phrase “under God” more than a decade later, in 1954, when the world had moved from hot war to cold.
Supporters of the new wording said it would set the United States apart from godless communism.
The case is Elk Grove Unified School District v. Newdow, 02-1624.