Court Overturns Lower Court Ruling on Legal Technicality

The Supreme Court today preserved the term “under God” in the Pledge of Allegiance, reversing an earlier ruling by the U.S. Ninth Circuit Court of Appeals that teacher-led recitation of the Pledge, when it contained the words “under God,” was unconstitutional.

The Court ruled that Michael Newdow, the California atheist who brought suit on behalf of his daughter, lacked standing to sue because the child’s mother, Sandra Banning, has “what amounts to a tie-breaking vote” on issues related to the child’s education.

Three justices, William Rehnquist, Sandra Day O’Connor and Clarence Thomas, concurred in the judgment reversing the Ninth Circuit. They did so, however, on the grounds that Newdow did have standing to sue but that teacher-led recitation of the Pledge did not violate the First Amendment.

“I am disappointed with the court’s action,” said the Rev. Barry W. Lynn, executive director of Americans United for Separation of Church and State. “Students should not feel compelled by school officials to subscribe to a particular religious belief in order to show love of country. America is increasingly diverse in matters of religion, and our public schools should reflect that diversity.”

But Jay Sekulow, who filed an amicus brief on behalf of members of Congress and the Committee to Protect the Pledge urging the Court to reverse the Ninth Circuit’s ruling, disagreed. “We are pleased that the Supreme Court reached the proper conclusion in determining that Michael Newdow did not have legal standing to bring the lawsuit challenging the Pledge of Allegiance,” he said.

“By dismissing this case and removing the appeals court decision, the Supreme Court has removed a dark cloud that has been hanging over one of the nations most important and cherished traditions–the ability of students across the nation to acknowledge the fact that our freedoms in this country come from God, not government,” Sekulow said.

Doug Laycock, who filed an amicus brief on behalf of 32 Christian and Jewish clergy urging the Court to affirm the Ninth Circuit’s ruling, called the decision “an entirely sensible resolution to a difficult question. For most Justices in the majority, this result avoided a very difficult problem: it was politically impossible to strike down the Pledge, and legally impossible to uphold it.

“The three opinions that would uphold the Pledge illustrate the difficulty of that task: they take three wildly inconsistent approaches,” Laycock said. “Chief Justice Rehnquist implausibly claims that nothing in the Pledge is really religious. Justice Thomas would abolish all existing law under the Establishment Clause. Justice O’Connor would hold that the Pledge is a permissible form of ‘ceremonial deism,’ recognizable as such because it is very brief, recited by rote, avoids reference to any particular religion, and is not worship or prayer. This is an important opinion; it is the first Supreme Court opinion suggesting objective criteria for distinguishing permissible and impermissible government invocations of religion.”

Both Laycock and Sekulow participated in a discussion of the merits of the Pledge case, hosted by the Pew Forum on Religion & Public Life, in March 2004. The full transcript of that discussion is available on the Pew Forum’s Pledge of Allegiance online resource page at pewresearch.org/pewresearch-org/religion/religion-schools/pledge/. Also available on that page are an overview of the case, a legal backgrounder that addresses the issue of Newdow’s legal standing, and links to news articles, reactions from advocacy organizations, and nearly all of the briefs that were filed in the case.

The Pew Forum on Religion & Public Life seeks to promote a deeper understanding of issues at the intersection of religion and public affairs. The Forum pursues its mission by delivering timely, objective information to federal government officials, Washington-based journalists, policy analysts and leaders of national advocacy organizations. For more information, visit pewresearch.org/pewresearch-org/religion.