In Elk Grove Unified School District v. Newdow (2004), the Supreme Court faced two issues. The first issue was whether Michael Newdow had standing or the legal right to challenge as unconstitutional a public school board’s policy that required teachers to lead willing students in reciting the Pledge of Allegiance. The second issue was whether the pledge, which includes the phrase “under God,” violated the Establishment Clause of the U.S. Constitution. The Court decided that Newdow, as noncustodial father, had no right to sue, and thus it avoided having to rule on the constitutional issue.
The Pledge of Allegiance reads, “I pledge allegiance to the Flag of the United States of America and to the Republic for which it stands, one Nation under God, indivisible, with liberty and Justice for all.” It was enacted on June 22, 1942, and the phrase “under God” was added by a congressional amendment in 1954.
The Elk Grove Unified School Board in California required all of its elementary school students to recite the Pledge of Allegiance each day. Newdow, the atheist noncustodial father of a young girl enrolled in kindergarten in the district, filed suit, arguing that because the pledge contained the phrase “under God,” his daughter was being indoctrinated in violation of both the Establishment Clause and the Free Exercise Clause. Newdow, who had never lived with his daughter, filed suit as “next friend” on her behalf in a federal trial court in California.
Finding that the disputed words were constitutional, the court dismissed the complaint. This volatile issue immediately became a case of great public interest and was watched as it was appealed to the Ninth Circuit. On further review, the Ninth Circuit, which reversed in favor of the father, maintained that he had a right to direct his daughter’s religious education and that the board policy violated the Establishment Clause.
This case was not only controversial, but directly impacted schools throughout the entire Ninth Circuit, putting many public schools in this area on hold and, in general, confusing some schoolchildren. To further complicate the proceedings, the mother, the sole legal guardian of the child, did not object to her daughter’s recitation of the Pledge of Allegiance. She unsuccessfully filed a motion to dismiss the case, pointing out that it was not in her daughter’s best interest to become involved in the litigation. Eventually the Ninth Circuit again affirmed in favor of Newdow, asserting that he retained the right to expose his child to his own religious views.
In 2004, the Supreme Court agreed to hear an appeal in Newdow under the watchful eyes of a nation, divided in sentiments between church and state. As is often the case when another means of review is available, the Court avoided the question of the constitutionality of the school board’s policy. Instead, the majority decided that since Newdow, as noncustodial father, did not have legal standing to file suit, his case had to be dismissed and the earlier judgments vacated. Dissatisfied with the outcome, in 2005 Newdow filed a new version of the suit along with parents who shared his perspective. Insofar as a federal trial court in California granted the plaintiffs’ request to prohibit students from reciting the words “under God” in the pledge on the basis that doing so violated the Establishment Clause, it appears that this litigation over the constitutionality of these words is far from over.
Deborah E. Stine
See also Pledge of Allegiance; Prayer in Public Schools; Religious Activities in Public Schools; State Aid and the Establishment Clause