Elk Grove Unified School District V. Newdow - U.S. Supreme Court

U.S. Supreme Court

On March 24, 2004 the Supreme Court of the United States agreed to hear the case to consider two questions: (1) whether Newdow had standing as a noncustodial parent to challenge the School District's policy on recitation of the Pledge, and (2) if so, whether the policy offends the First Amendment.

Justice Antonin Scalia recused himself from the case after a request by Newdow that cited Scalia's disapproval of the Ninth Circuit decision in a public speech. According to Scalia, many lower courts often misinterpret the Establishment Clause, extending its proscription of religiosity in the public sphere.

On June 14, 2004, in an opinion written by Justice John Paul Stevens, five of the remaining eight justices - Stevens, Anthony Kennedy, Stephen Breyer, David Souter, and Ruth Bader Ginsburg - found Michael Newdow lacked standing to bring the case as "next friend" to his daughter, because Sandra Banning had sole legal custody of the child at the time - including exclusive authority over the girl's education. The majority also found that Michael Newdow lacked prudential standing to bring the case on behalf of himself due to the custody arrangement. This resulted in reversal of the Ninth Circuit's decision as a matter of procedural law.

The other three justices concurred in the judgment reversing the Ninth Circuit, but dissented on the issue of standing. They found Michael Newdow did have standing to bring the suit. Thus, they proceeded to examine the constitutional question, and in doing so they found it did not offend the Constitution. Chief Justice William Rehnquist wrote an opinion in which the other two joined in part; and both justice Sandra Day O'Connor and Justice Clarence Thomas wrote their own separate opinions.

Rehnquist's opinion asserts the term "under God" does not endorse or establish religion but it actually asserts that the term merely acknowledges the nation's religious heritage, in particular the role of religion for the Founding Fathers of the United States. Thus, according to the opinion, the Pledge is a secular act rather than an act of indoctrination in religion or expression of religious devotion.

Justice Thomas, by contrast, asserts that finding the Pledge unconstitutional is an unjustifiable expansion of the meaning of "coercion" as that term is used in legal precedent: to prohibit compelling students in a "fair and real sense" by "subtle and indirect public and peer pressure" (see, Lee v. Weisman, 505 U.S. 577 (1992)) to be prayerful, as well as prohibiting actual coercion by force of law and threat of penalty. Further, he argues that the Establishment Clause ought not be considered a right that attaches to individuals pursuant to the Incorporation Doctrine, because he believes the clause only prohibits interference by the federal government in the right of individual states to establish their own official religions - notwithstanding current majority opinion on the question is against states having such a right, as a result of the Incorporation Doctrine.