Court Allows 'Under God' on Technicality

[AuntieSocial]

Court Allows 'Under God' on Technicality

Click here to read the article on the original site

By: ANNE GEARAN
Press Organization: Associated Press

WASHINGTON - 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.

ON THE NET

Ruling in Elk Grove Unified School District v. Newdow: wid.ap.org/documents/scotus/040614newdow.pdf

[AuntieSocial]

Well, they took the easy way out on this one ... I'm actually surprised that the decision was published today. I thought they would wait until the last possible date in the term (being June 28, 2004) to publish a 'ceremonial deism' decision ...

Looks like the fight isn't over. I am looking forward to seeing the decisions that come out of the 3rd Circuit with respect to forced political speech with respect to the pledge ... I still can't find a case citation, but Larry Darby (of the Atheist Law Center) has referred to this up & coming case several times over the past months.

[AuntieSocial]

The following commentary was written by Larry Darby (Atheist Law Center):

For the benefit of non-lawyers, there are several factors a court considers before allowing a case to proceed on its merits. These factors include ripeness (there must be immediate threat of harm to Newdow), mootness (there must be a real controversy involving Newdow and existing at all stages of review) and standing to sue (Newdow must have sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy).

The U.S. Supreme Court determined that the U.S. Court of Appeals (9th Cir.) was wrong in ruling that Newdow had standing to sue in the U.S. District Court, the trial court. The 9th Circuit decision was reversed and the U.S. District Court decision (to dismiss the case without a trial) now stands. Newdow's suit has never been subject to a trial on the merits of his claims. When Newdow appealed the trial court decision to the 9th Circuit, he was appealing the trial court's dismissal of his complaint.

Since the mother of Newdow's child has sole legal custody of the child, the U.S. Supreme Court ruled that Newdow did not have a right to sue in this matter. In short, the U.S. Supreme Court ruled that Newdow did not have a sufficient stake in the issue he presented at the trial court level.

In matters of divorce law generally custody has two components: physical custody and legal custody. Most often there is one physical custodial parent and both parents share "legal custody", which allows the non-custodial (physical) parent to have some input in decisions affecting the child's healthcare and education. When physical and legal custody is vested in one parent only, we call it sole custody. If there is shared or joint legal custody and the two parents cannot agree, then typically the physical custodial parent has tie-breaker powers. In his case, Newdow lacks both legal custody and physical custody. When Newdow exercises visitation rights with his daughter, he has temporary physical custody, but otherwise is subject to many constraints. If Newdow had at least joint legal custody, he could exercise some input into important decisions regarding the child, such as filing suit on the child's behalf.

In a release yesterday American Atheists spokesman, Kentucky state director and attorney Edwin Kagin probably articulated the matter best: "[T]his case has been fatally flawed from the first because the plaintiff clearly did not have standing to bring the action. Michael Newdow not only did not have custody of his daughter, whose rights he attempted to argue, but his former wife and the daughter are both fundamentalist Christians, deeply and openly opposed to his stand on this issue. This is not the best set of facts under which to argue the constitutionality of the words “under God” (which in my view are clearly an unconstitutional attempt to establish a religion)."

All things considered, Newdow is to be commended for bringing national attention to an important instance of a religious encroachment into government, probably best described as yet another instance of ceremonial deism. There are bigger issues at stake, namely, that any one of the so-called secular versions of the loyalty oath is coerced political speech, but it was Newdow who opened the door for debate in the 21st century. Even without "under God" the loyalty oath is an assault against intellectual freedom or freedom of opinion when coerced by government, particularly in a captive environment of a government school.

[AuntieSocial]

Commentary for the American Atheists Newletter released June 14, 2004:

SCOTUS PRESERVES GOD PLEDGE, RULES AGAINST NEWDOW ON STANDING
Constitutional Merits Of Case Ignored

The U.S. Supreme Court announced today that "under God" would remain -- at least temporarily -- in the nation's Pledge of Allegiance, and that California Atheist Michael Newdow lacked proper legal standing to challenge the controversial practice.

The decision comes in the case of ELK GROVE UNIFIED SCHOOL DISTRICT v. NEWDOW.

Newdow, an attorney and physician, filed suit against the unison recitation of the Pledge arguing that it interfered with his rights as a parent to direct the upbringing of his daughter, and violated the constitutional separation of church and state.

The words "under God" were not a component of the original pledge which was adopted as an official patriotic tribute by the U.S. Congress in 1942. At the height of the Cold War, however, the Roman Catholic Church, Hearst newspaper chain, American Legion and other organizations demanded that the phrase be amalgamated into the Pledge as a statement against "godless Communism." Federal lawmakers approved, and then-President Dwight D. Eisenhower signed the measure in 1954.

Previous attempts to challenge the religionized Pledge including a suit filed by prominent Atheist Madalyn Murray O'Hair were turned down by the courts. In 2002, however, the legal challenged filed by Newdow reached the U.S. Ninth Circuit Court of Appeals, where a panel of judges ruled that the inclusion of "under God" violated the First Amendment.

Judge Alfred T. Goodwin opined:

"A profession that we are a nation 'under God' is identical, for Establishment Clause purposes, to a profession that we are a nation 'under Jesus,' a nation 'under Vishnu,' a nation 'under Zeus,' or a nation 'under no God,' because none of these professions can be neutral with respect to religion."

Newdow argued the case personally in front of the Supreme Court two months ago. Legal observers, including those supporting the "under God" version of the Pledge, praised his performance noting that he raised persuasive legal arguments. Today's ruling against Newdow, however, was based on the peripheral issue of standing. Newdow remains in a protracted custody fight with the mother of his daughter. The eight Justices agreed that he lack sufficient status to file the case on her behalf.

Justice Antonin Scalia recused himself from the case after making public statements prior to oral arguments that he supported the religionized version of the Pledge of Allegiance.

Writing today for the eight other jurists, Justice John Paul Stevens opined: "When hard questions of domestic relations are sure to affect the outcome, the prudent course if for the federal court to stay its hand rather than reach out to resolve a weighty question of federal constitutional law."

Chief Justice William H. Rehnquist supported that decision, but penned a separate opinion arguing that the Pledge as recited today does not violate the Constitution. News reports indicate that Justices Sandra Day O'Connor and Clarence Thomas concurred.

Is this the end of the NEWDOW case?

"There will be another case -- soon -- challenging the 'under God' portion of the Pledge of Allegiance," said Ellen Johnson, president of American Atheists.

In a statement to the news media, Johnson declared that by denying NEWDOW on the basis of standing, "the high court conveniently circumvented any substantive legal arguments over the constitutionality of this invasive practice which insults and marginalizes millions of Atheists, Freethinkers, Secular Humanists and
other nonbelievers."

[vertigo]

All things considered, Newdow is to be commended

No, he should not be. It was flawed from the start, as they said. There was never going to be a positive result for him. I think he should have found a better method, rather than make a huge public spectacle out of a flawed case.

[Ginnsu]

vertigo said:

No, he should not be. It was flawed from the start, as they said. There was never going to be a positive result for him. I think he should have found a better method, rather than make a huge public spectacle out of a flawed case.

I personally think Newdow should be commended regardless of what his failures or mistakes might be. I may not agree with his methods, but then, I'm not in a position to fight the same fight he did. The only way I see this succeeding is if there are enough people who stand up and show public support for him, or if somebody was to stand up and start the effort themselves, maybe even somebody with the standing that Newdow lacks.

[AuntieSocial]

I think that Newdow has also opened up another issue before the courts. Unfortunately, the Supreme Court has done a great injustice to all parents who do not have custodial rights to their child.

Imagine, if you will, a graver situation involving divorced parents. One parent decides to go to Waco, Texas or Jonestown with their child. The other fears for the life of the child and seeks a court injunction to stop the situation.

According to the Supreme Court, the non-custodial parent has no legal standing to decide what is in the best interest of the child.

Granted, the SCOTUS only said that they weren't going to decide on the Pledge case due to standing, but that decision basically becomes a precident with respect to non-custodial standing. Would the courts be entitled to use this ruling in my above noted hypothesis as an excuse to stay away from custodial fights? Absolutely ...

The victims of this ruling are all parents who don't have have the day-to-day say in their children's lives and the children themselves.

[vertigo]

I think that Newdow has also opened up another issue before the courts. Unfortunately, the Supreme Court has done a great injustice to all parents who do not have custodial rights to their child.

Is this really a new occurance? Wasn't this non-custodial jazz known before?

[Maverick]

The following op-ed was written by Michael Newdow, the plantiff in the Pledge case, and published by The New York Times on June 21, 2004.

Pledging Allegiance to My Daughter

Click here to read this article at RestoreThePledge.com

By MICHAEL NEWDOW
Published: June 21, 2004

SACRAMENTO, Calif. — Last week the Supreme Court ruled in effect that once parents are involved in family court proceedings, their federal rights are at risk. This decision sets a dangerous precedent that violates the rights of citizens to have the federal judiciary address their claims.

The case, which I brought, presented the court with an important question: is a classroom recital of the Pledge of Allegiance unconstitutional? The pledge — with its claim that ours is "one nation, under God" — is recited daily in the public school attended by my daughter. Because I am an atheist, she is, in essence, told every school morning that her father's religious views are wrong.

This is an injury to me personally, which should give me "standing": the right to have the court adjudicate my claim. Nonetheless, the merits of the case were never addressed. Instead, the court ruled that since I do not have legal custody of my daughter, I do not have the right to pursue the matter in the federal courts.

As Chief Justice William Rehnquist noted in his concurring opinion, the majority did not dispute that I had standing under Article III of the Constitution, which requires a personalized injury before a person can litigate. The court did, however, cite a "prudential" reason for denying me the right to bring this lawsuit, saying that the federal judiciary should "leave delicate issues of domestic relations to the state courts."

Although that's certainly a reasonable policy, there's a problem with applying it in this case: nothing I requested was a family law matter.

I began my effort to remove "under God" from the pledge in 1998, when my child's mother, Sandra Banning, and I were good friends. This was more than a year before we first went to family court. In fact, it wasn't until July 2002 — after my victory in the United States Court of Appeals for the Ninth Circuit — that the issue of my daughter's legal custody entered into the pledge case. In bringing the case, my goal was simply to uphold the separation of church and state, especially in my daughter's public school, that is required by the Constitution.

Any decision on the merits would have been unrelated to — and would have had no effect on — the family law judge's orders. Nor would it would have infringed upon the rights of either Ms. Banning or our child. The "prudential" considerations, therefore, seem questionable at best.

The court strained to limit standing in this case, saying that "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." But my standing was not founded on disputed rights under family law; my daughter is told her father is wrong no matter what the custody arrangement.

Similarly, any "adverse effect" on my daughter would have been due to private biases, not as a result of any custody arrangement. As the Supreme Court has previously stated (in a case the majority cited, no less): "Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect." Changing the federal judiciary's standing rules in response to private biases is certainly giving them effect.

What's to limit this policy in the future? If a school district reverts to racially segregated classrooms, does a divorced black mother have no standing because the father prefers that policy? If — in direct violation of Supreme Court precedent — a public school district starts teaching the biblical account of Creation, is a scientist prohibited from challenging that practice because the other parent is a fundamentalist Christian?

And what if a mother agrees with her daughter's teacher that it's proper to start off every school day by having the class stand up and say that it's fine to treat atheists (like the girl's father) as second-class citizens? Wait a minute: that's precisely the case that, after tens of thousands of hours invested over six years, the Supreme Court simply dismissed last week.

Our Constitution is the rule book that is supposed to guarantee to every citizen that each branch of government will do its duty and uphold his or her rights. In this case, Congress broke the rule that says government may not take a position on questions of religious belief. Then the state court system broke the rule that says that fit parents have a fundamental constitutional right to love and protect their children (as might be appreciated by the fact that no reasonable justification for my loss of legal custody has ever been presented). And now — in the highest court in the land — the federal courts have broken the rule that says they will adjudicate any claim of injury that is properly brought before them.

God bless America.



Michael Newdow was the plaintiff in Elk Grove Unified School District v. Newdow.

Source: The June 21, 2004 edition of the New York Times

[vertigo]

And what if a mother agrees with her daughter's teacher that it's proper to start off every school day by having the class stand up and say that it's fine to treat atheists (like the girl's father) as second-class citizens?

He is putting words in their mouths. I hate it when people who have a good cause do such things. They should play it completely 'down the line', to make the attempt as compelling as possible, and to win favour.

The court strained to limit standing in this case

Opinion. He shouldn't be projecting his opinion of the motives of the court.

I can't comment on the validity of his objections. I don't know what constitutes 'standing'. Do only parents with custody have standing to sue a school?

-edit- I know AuntieSocial already said that the Supreme Court ruled that it did. What I mean is, is that set in stone? Was this ever disputed previously? What cnstitutes 'standing'?

[AuntieSocial]

vertigo said:

Is this really a new occurance? Wasn't this non-custodial jazz known before?

It has been occurring for years, yes ... and unjustly so ... however, it has never had SCOTUS backing before. There is now a case on the books that has ruled that non-custodial parents have no legal standing under the law. Although SCOTUS was attempting to stay out of family law matters, they have, in my opinion, muddied the waters.

[AuntieSocial]

vertigo said:

I can't comment on the validity of his objections. I don't know what constitutes 'standing'. Do only parents with custody have standing to sue a school?

-edit- I know AuntieSocial already said that the Supreme Court ruled that it did. What I mean is, is that set in stone? Was this ever disputed previously? What cnstitutes 'standing'?

First, the definition of 'standing' from the Law.com dictionary:

n. the right to file a lawsuit or file a petition under the circumstances. A plaintiff will have standing to sue in federal court if a) there is an actual controversy, b) a federal statute gives the federal court jurisdiction, and c) the parties are residents of different states or otherwise fit the constitutional requirements for federal court jurisdiction. A state court example: a trade association will have standing to file a petition for a writ of mandate to order a state government agency to enforce a regulation if the association represents businesses affected by the regulation, and it would be impractical for each business to file its own petition.


Basically, only a person who has a direct interest in the damages can sue another. For example, I can't sue a corporation for damages that were sustained by a third party. I can, however, sue when I am doing so on behalf of a minor child or disabled person. I would have to have a direct interest in the person who I am protecting. Newdow, as the natural father, sued on the basis that he was representing his daughter. This situation is exacerbated (as he says in the article above) because he has also suffered damages. (Telling his daughter that "her father's beliefs are wrong" could undermine a child's trust in his character and authority).

The ruling by SCOTUS makes it a law that a non-custodial parent cannot sue on behalf of their child's rights. Matters of child-rearing generally fall into the domain of the custodial parent, however, what happens when the decisions or non-actions of the custodial parent bias the child against the other parent?

The "Pledge Case" has never been decided on the merits of the case, which is a shame. When Newdow first sued the School Board, the court ruled that he did not have standing. The issue of standing was appealed and overturned by the 9th Circuit. When Newdow presented his case in front of the Supreme Court, there were a couple of questions concerning his standing to bring the suit, but most of the questions dealt with the issue at the root of the case. The post-hearing commentaries seemed opomistic that SCOTUS would finally handle the core issue, once and for all. As we read above, they didn't.

In my opinion, they have severely undermined the (already limited) rights of the non-custodial parent.

[vertigo]

"The ruling by SCOTUS makes it a law that a non-custodial parent cannot sue on behalf of their child's rights."

"In my opinion, they have severely undermined the (already limited) rights of the non-custodial parent."

I agree. As the biological father he should indeed have standing to sue. He is still mandated to pay alimony, I would assume, so therefore he should have standing to sue on matters regarding his child. It is a travesty of justice.