Court Allows'Under God' on Technicality
By ANNE GEARAN
Associated Press Writer
WASHINGTON (AP) -- The Supreme Court on Monday allowed millions of schoolchildren to keep affirming loyalty to one nation "under God" but dodged the underlying question of whether the Pledge of Allegiance is an unconstitutional blending of church and state.
The ruling overturned a lower court decision that the religious reference made the pledge unconstitutional in public schools. But the decision did so on technical grounds, ruling the man who brought the case on behalf of his 10-year-old daughter could not legally represent her.
It was an anticlimactic end to an emotional high court showdown over God in the public schools and in public life. It also neutralizes what might have been a potent election-year political issue in which the Bush administration argued strongly that the reference to God should remain part of the pledge.
The outcome does not prevent a future court challenge over the same issue, however, and both defenders and opponents of the current wording predicted that fight will come quickly.
For now, five justices said the court could not rule on the case because California atheist Michael Newdow does not have full custody of his daughter.
"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 majority.
Newdow, who has fought a protracted custody battle with the girl's mother, was angered by the decision and the basis for it.
"She spends 10 days a month with me," he said. "The suggestion that I don't have sufficient custody is just incredible."
Three other justices went along with the outcome, but seemed to accuse the majority of using Newdow's legal standing as a fig leaf to avoid the harder constitutional issue. The three, Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor and Clarence Thomas, made clear that they would have upheld the religious reference.
The court's ninth justice, Antonin Scalia, removed himself from the case after making off-the-bench remarks that seemed to telegraph his view that the pledge is constitutional.
The phrase "one nation under God" is more about ceremony and history than about religion, Rehnquist wrote. He likened the phrase to the motto "In God We Trust" on U.S. currency, and to the call that opens each session of the high court itself: "God save this honorable court."
"All these events strongly suggest that our national culture allows public recognition of our nation's religious history and character," Rehnquist wrote.
Nathan Diament, policy director for the Union of Orthodox Jewish Congregations of America, said most Americans would be relieved by the ruling.
"There is a consensus in this country that there is an appropriate place for expressions of religion in the public square," Diament said.
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 already has said schoolchildren cannot be required to recite the oath that begins, "I pledge allegiance to the flag of the United States of America." The court also has repeatedly barred school-sponsored prayer from classrooms, playing fields and school ceremonies.
Before 1954, when the United States was in the middle of the Cold War, the pledge did not include a reference to God. In adding it, members of Congress said they wanted to set the United States apart from "godless communists."
In a ruling last year, the 9th U.S. Circuit Court of Appeals in San Francisco 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."
That 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 covered by the appeals court.
Children were never barred from saying the full pledge, because the lower court ruling was on hold while the Supreme Court considered the issue.
Like most elementary school children, Newdow's daughter hears her teacher lead the pledge each morning. The case began when Newdow, a lawyer, doctor and self-proclaimed atheist minister, sued his daughter's Sacramento-area school district, Congress and President Bush to remove the words "under God."
In one of the many odd twists to an odd case, Newdow served as his own lawyer when the Supreme Court heard arguments in March. He argued that each day his daughter hears the pledge is another day that a teacher tells her, in effect, that her father is wrong.
The mother, Sandra Banning, told the court in legal filings that she makes the decisions about the girl's education. Newdow can fight the pledge on his own, but should not drag their daughter into it, Banning argued. She added that she supports leaving the pledge as it is, and wants her daughter to continue reciting it at school.
The case is Elk Grove Unified School District v. Newdow, 02-1624.
If anyone would care to read what I wrote about this three months ago, you may access the document here: http://windchaser.org/junk/cox_newdow_paper.rtf.