Supreme’s Ruling a Pledge for Parental Rights and Judicial Restraint     6/14/2004
By Jan LaRue, Chief Counsel

Legal analysis: Court dismisses atheist’s challenge to Pledge of Allegiance due to lack of standing.

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Public school officials may continue for the time being to lead children across America in voluntarily reciting the Pledge of Allegiance including the words “under God.” The Court’s ruling in Elk Grove School District v. Newdow did not address whether the inclusion of the words “under God” violate the Establishment Clause of the First Amendment when teachers lead students in the Pledge. Instead, the Court’s 8-0 ruling dismissed the challenge by atheist Michael Newdow’s based on his lack of standing.

The ruling stated: “In every federal case, the party bringing the suit must establish standing to prosecute the action. In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.”

While most Americans would have liked the Court to decide once and for all that “under God” in the Pledge is constitutional, the Court’s ruling on the issue of standing is by no means “just a technicality.”

In order to meet the standing requirement, Newdow needed to show “that the conduct of which he complains has caused him to suffer an ‘injury in fact’ that a favorable judgment will redress.” Newdow claimed that his right as a father to control his daughter’s upbringing gave him standing. The Court addressed the “prudential dimensions” of standing because of the state family law issues.

Although we have not exhaustively defined the prudential dimensions of the standing doctrine, we have explained that prudential standing encompasses ‘the general prohibition on a litigant’s raising another person’s legal rights, the rule barring adjudication of generalized grievances more appropriately addressed in the representative branches, and the requirement that a plaintiff's complaint fall within the zone of interests protected by the law invoked.’

Newdow’s case began in 2002, when he sued in federal court claiming that the federal statute that added “under God” to the Pledge in 1954 is unconstitutional. He sought to prevent the California school district his daughter attends from having students voluntarily recite the Pledge of Allegiance at the beginning of each school day.

The district court dismissed his case for lack of standing but a three-judge panel of U.S. Court of Appeals for the Ninth Circuit agreed with Newdow by a 2-1 vote. On February 28, 2003, a full panel of the circuit by a 15-9 vote refused to rehear the case. In the opinion and order, it withdrew the ruling on the federal statute but allowed to stand the ruling that the school district policy “impermissibly coerces a religious act” because of the phrase “under God.”

The Supreme Court granted the school district’s petition to review the 9th Circuit’s ruling in order to answer two questions:

1. Whether Newdow had standing to challenge the school district’s policy.
2. Whether the policy is unconstitutional under the Establishment Clause of the First Amendment made applicable to the states through the Due Process Clause of the 14th Amendment.

Because the Court answered “no” to the first question, the ruling vacated the 9th Circuit ruling allowing the policy to remain in force. The Court concluded:

In our view, it is improper for the federal courts to entertain a claim by a plaintiff whose standing to sue is founded on family law rights that are in dispute when prosecution of the lawsuit may have an adverse effect on the person who is the source of the plaintiff's claimed standing. 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. There is a vast difference between Newdow's right to communicate with his child¯which both California law and the First Amendment recognize¯and his claimed right to shield his daughter from influences to which she is exposed in school despite the terms of the custody order. We conclude that, having been deprived under California law of the right to sue as next friend, Newdow lacks prudential standing to bring this suit in federal court.

The importance of intervention in the lawsuit by Sandra Banning, the girl’s mother, proved to be vital to the Court’s ruling.

As explained briefly above, the extent of the standing problem raised by the domestic relations issues in this case was not apparent until August 5, 2002, when Banning filed her motion for leave to intervene or dismiss the complaint following the Court of Appeals’ initial decision. At that time, the child’s custody was governed by a February 6, 2002, order of the California Superior Court. That order provided that Banning had “‘sole legal custody as to the rights and responsibilities to make decisions relating to the health, education and welfare of'’” her daughter. … The order stated that the two parents should “‘consult with one another on substantial decisions relating to’” the child's “‘psychological and educational needs,’” but it authorized Banning to “‘exercise legal control’” if the parents could not reach “‘mutual agreement.’”

Ken Starr, former U.S. Solicitor General, represented Banning pro bono and filed a brief on her behalf in the Supreme Court.

While the Court did not rule on the second question, Chief Justice William Rehnquist and Justices Sandra Day O’Connor and Clarence Thomas wrote separately to say that in their opinion, the Pledge, including “under God” is not unconstitutional.

The Court’s ruling did not include Justice Antonin Scalia, who recused himself from the case because of public comments he had made criticizing the 9th Circuit’s ruling.

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