Shelley Lapkoff, Ph.D. Shelley Lapkoff, Ph.D.
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2005 Lawsuit
After being defeated for lack of standing in his original suit, Dr. Michael Newdow is now representing two families who object to their children having to listen to students and staff in their public school reciting the version of the Pledge of Allegiance that contains the words "under God."  On January 3, 2005, this new Pledge lawsuit was filed by in the U.S. District Court for the Eastern District of California.  District Court Judge Lawrence Karlton ruled in favor of the Plaintiffs, meaning that the judge found the Pledge unconstitutional with the "under God" clause included.  An appeal was taken to the 9th Circuit Court of Appeals.  Briefing was completed in September, 2006, and oral argument occurred on December 4, 2007.  The 9th Circuit Court of Appeals has yet to issue its opinion.

2000 Lawsuit
It was back on June 14, 2004, when the United States Supreme Court ruled in the case of Elk Grove Unified School District et al. v. Newdow et al. Case # 02-1624, regarding the constitutionality of reciting the Pledge of Allegiance in public schools. All eight of the attending justices ruled against Dr. Michael Newdow, though for different reasons.  Five of them (Stevens, Kennedy, Souter, Ginsberg, and Breyer) decided that he did not have standing to bring the case on his daughter’s behalf.  The three other justices (Rehnquist, O’Connor, and Thomas) granted Newdow legal authority but ruled against him on the constitutional question.  As a consequence, these rulings let stand the phrase “under God” in the version of the Pledge officially authorized by the U.S. Code of law (4 U.S.C. § 4).

Newdow, an atheist, physician, and holder of a law degree, originally brought suit in California where, in the public school his daughter attended, each day a teacher leads willing students in a voluntary recitation of the Pledge.  He believed it was a violation of the Establishment Clause of the First Amendment* for the state to officially endorse a Pledge that included the words “under God.”  Because of custody issues, the Supreme Court majority held that he did not have legal or “prudential standing” to speak for his daughter and to challenge the school district’s policy in federal court.  This five-justice majority was silent on the larger constitutional question.

Expressing a different view, the three other justices claimed that Newdow did have legal standing, but in their opinion, a recitation of the Pledge in public schools which includes the words “under God” does not violate the Establishment Clause of the First Amendment and is therefore constitutional.

The case began in March 2000 when Newdow, an emergency room doctor in the Sacramento, CA, area, brought a suit in federal court against the U.S. Congress, the President of the United States, the State of California, and the Elk Grove Unified School District.  He requested that the court declare that Congress violated the Establishment and Free Exercise Clauses of the United States Constitution when it added the words “under God” to the Pledge in 1954.  He also demanded that Congress immediately remove the words “under God” from the Pledge; and that the State of California and the school district immediately forbid the use of the Pledge in its current form.

In May of that year, a federal magistrate judge in the Eastern District of California dismissed the case after the school district defendants submitted a Motion to Dismiss.  Two months later, a federal district judge filed an order upholding the dismissal.  In November, Newdow filed his appeal with the Ninth Circuit Court.  On March 14, 2002, Newdow and the defendants presented their oral arguments before Judges Goodwin, Reinhardt, and Fernandez of the Ninth Circuit Court of Appeals.  This three-judge panel delivered its opinion on June 26, 2002, sparking a furor across the country when it ruled, 2-to-1, that it was unconstitutional for the school district and state to lead students in a recitation of the Pledge.  Moreover, the circuit court panel ruled (1) that Newdow did have standing to sue on behalf of his daughter and to challenge the school district’s practice of reciting the Pledge; and (2) that the phrase "under God" violates the First Amendment's guarantee that government make no law that establishes or inhibits religion.

The ruling set off a nationwide blast of protest from the highest levels of Congress and the White House to citizens in all walks of life.  According to President Bush, the ruling was ridiculous and inconsistent with the traditions and history of America.  The Senate and the House of Representatives passed resolutions strongly disapproving of the decision and seeking to intervene in the case to defend the constitutionality of the Pledge of Allegiance.  In addition, the House resolved that the entire Ninth Circuit Court should rehear the ruling in order to reverse it.  U.S. Attorney General John Ashcroft also announced that the Justice Department would request that an 11-member panel of judges of the Ninth Circuit Court reconsider the ruling.

Coincidentally, even before Ashcroft’s announcement, Justice Goodwin issued a stay, placing his ruling on hold, pending appeals.  At no time were the schools and districts within the Ninth Circuit’s nine-state jurisdiction required to suspend recitation of the Pledge.

The controversy led to petitions that the entire Ninth Circuit rehear the case en banc.   Instead, in a surprise ruling on February 28, 2003, 15 of the 24 justices of the Ninth Circuit Court of Appeals rejected the Bush administration's request to reconsider its decision.  The court said it would not allow the strident public disagreement with its original decision to influence the ruling.  "We may not—we must not—allow public sentiment or outcry to guide our decisions," Judge Stephen Reinhardt wrote in the 46-page opinion.  "It is particularly important that we understand the nature of our obligations and the strength of our constitutional principles in times of national crisis.  It is then that our freedoms and our liberties are in the greatest peril."

Consequently, the administration, the state, the school districts involved, and Dr. Newdow appealed the decision to the next higher authority, thus setting the stage for the showdown in the U.S. Supreme Court. 

Within a month of the original Appeals Court ruling, an interesting, and eventually crucial, sidelight was revealed by the mother of the then-8-year old girl on whose behalf Michael Newdow had brought his suit.  According to Sandra Banning, who had never been married to Newdow, her daughter did not object to reciting the pledge in school and did not feel harmed by it.  Ms. Banning did not want the public to think her daughter was an atheist and asked that she not be caught up in the midst of the legal wrangling. 

As summarized in the first paragraph of the Supreme Court’s final ruling:

Sandra Banning, the child's mother, then filed a motion to intervene or dismiss, declaring, inter alia, that she had exclusive legal custody under a state-court order and that, as her daughter's sole legal custodian, she felt it was not in the child's interest to be a party to Newdow's suit. Concluding that Banning's sole legal custody did not deprive Newdow, as a noncustodial parent, of Article III standing to object to unconstitutional government action affecting his child, the Ninth Circuit held that, under California law, Newdow retains the right to expose his child to his particular religious views even if they contradict her mother's, as well as the right to seek redress for an alleged injury to his own parental interests.

On October 14, 2003, the Supreme Court agreed to hear only the appeal from the school district.  In agreeing to hear the case, the Court said it would only determine two questions: (1) whether Newdow had standing—or the right to file the case as an injured party—and (2) whether a public school district’s policy requiring teachers to lead willing students in reciting the Pledge of Allegiance when it includes the words “under God” is unconstitutional.  In a rare exception to Supreme Court rules, Newdow, who also possesses a law degree and had argued his own case before the Ninth Circuit, was permitted to represent himself and argue his case before the justices of the nation’s highest court.

On March 24, 2004, the Supreme Court heard oral arguments in the case of Elk Grove Unified School District et al. v. Newdow et al.  By all accounts, Newdow acquitted himself admirably.  Countering arguments that the Pledge is “a ceremonial, patriotic exercise,” Newdow told the eight justices (Justice Scalia had recused himself) that, in addition to the Pledge’s being an unconstitutional, government-imposed religious exercise, the words “under God” are offensive to people who don't believe there is a God.  He claimed that the Pledge indoctrinates children and that “the government is supposed to stay out of religion.”  Unlike the appearance of the words “In God We Trust” on currency and other instances when the word “God” might appear as benign, ceremonial, and traditional, the reciting of the Pledge in public schools, Newdow insisted, was different, almost like a prayer.  "I am an atheist. I don't believe in God," he said. "My daughter is asked to stand up and say her father is wrong."  Newdow argued that when his daughter listens to the pledge it causes harm to him, and, therefore, the case should be decided in his favor.

In a remarkable development, Justice Antonin Scalia excused himself, upon petition by Newdow, because he publicly stated his opposition to the Ninth Circuit Court’s ruling in January when he said that issues like the Pledge should be settled by lawmakers rather than judges.

Not coincidentally, it was on Flag Day, June 14, 2004—and 50 years exactly since Congress added the words “under God” to the Pledge—that the Supreme Court issued its 8-to-0 decision.  The Justices overturned the Ninth Circuit’s opinion on purely technical grounds, ruling only that Newdow did not have the legal standing to represent his daughter, and ignoring the second question they had offered to answer.  It is worth quoting the Court’s own summary of its finding in this case (paragraph two of Elk Grove Unified School District v. Newdow, 02-1624), if only to highlight the narrow grounds on which the entire case was decided:

Held: Because California law deprives Newdow of the right to sue as next friend, he lacks prudential standing to challenge the school district's policy in federal court. The standing requirement derives from the constitutional and prudential limits to the powers of an unelected, unrepresentative judiciary. E.g., Allen v. Wright, 468 U. S. 737, 750. The Court's prudential standing jurisprudence encompasses, inter alia, "the general prohibition on a litigant's raising another person's legal rights," e.g., id., at 751, and the Court generally declines to intervene in domestic relations, a traditional subject of state law, e.g., In re Burrus, 136 U. S. 586, 593-594. The extent of the standing problem raised by the domestic relations issues in this case was not apparent until Banning filed her motion to intervene or dismiss, declaring that the family court order gave her "sole legal custody" and authorized her to "exercise legal control " over her daughter. Newdow's argument that he nevertheless retains an unrestricted right to inculcate in his daughter his beliefs fails because his rights cannot be viewed in isolation. This case also concerns Banning's rights under the custody orders and, most important, their daughter's interests upon finding herself at the center of a highly public debate. Newdow's standing derives entirely from his relationship with his daughter, but he lacks the right to litigate as her next friend. Their interests are not parallel and, indeed, are potentially in conflict. Newdow's parental status is defined by state law, and this Court customarily defers to the state-law interpretations of the regional federal court, see Bishop v. Wood, 426 U. S. 341, 346-347. Here, the Ninth Circuit relied on intermediate state appellate cases recognizing the right of each parent, whether custodial or noncustodial, to impart to the child his or her religious perspective. Nothing that either Banning or the school board has done, however, impairs Newdow's right to instruct his daughter in his religious views. Instead, he requests the more ambitious relief of forestalling his daughter's exposure to religious ideas endorsed by her mother, who wields a form of veto power, and to use his parental status to challenge the influences to which his daughter may be exposed in school when he and Banning disagree. The California cases simply do not stand for the proposition that Newdow has a right to reach outside the private parent-child sphere to dictate to others what they may and may not say to his child respecting religion. A next friend surely could exercise such a right, but the family court's order has deprived Newdow of that status.

In the opinion of most people who followed this historic case, both opponents and supporters, the Supreme Court, by failing to rule on the merits, simply dodged the central and broader question of whether the presence of the words “under God” in the Pledge of Allegiance violates the Establishment Clause of the First Amendment of the Constitution.  For those who expected some kind of constitutional face-off, it was anticlimactic, to say the least.  However, three justices who went along with the majority decision—Rehnquist, O’Connor, and Thomas—made clear their disappointment that the issue of legal standing had been used to avoid the kind of constitutional ruling they would have preferred—an upholding of the religious reference.  They will very likely get their chance.  Factions on both sides predict that there will soon be future legal challenges that end up in the Supreme Court.  Until then, the current version of the Pledge of Allegiance may be led by public school employees and recited by willing students throughout the United States, leaving open the sticky question of whether the Pledge serves as a prayer as well as a patriotic oath.

*First Amendment: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

ph: 510-540-6424, fax: 510-540-6425
email: Lapkoff@aol.com

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