Metropolitan News-Enterprise


Tuesday, June 15, 2004


Page 1


Supreme Court Declines to Reach Merits Of Californian’s Challenge to Pledge

Ninth Circuit ‘Under God’ Ruling Overturned on Standing Grounds


From Staff and Wire Service Reports


The Supreme Court yesterday 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 Ninth U.S. Circuit Court of Appeals decision that the religious reference made the pledge unconstitutional in public schools. But the five-justice majority did so on technical grounds, ruling the Sacramento-area lawyer 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, Justice John Paul Stevens 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.

Custody Battle

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.”

Justices Anthony M. Kennedy, David H. Souter, Ruth Bader Ginsburg, and Stephen G. Breyer joined in Stevens’ opinion.

Justice Antonin Scalia recused himself from the case after making off-the-bench remarks that seemed to telegraph his view that the pledge is constitutional. But Chief Justice William H. Rehnquist and Justices Sandra Day O’Connor and Clarence Thomas all concurred only in the result reached by the majority-overturning the Ninth Circuit ruling.

‘Novel’ Principle

Rehnquist accused the majority of “erect[ing] a novel prudential standing principle in order to avoid reaching the merits of the constitutional claim.” Stevens, he said, improperly relied on a case—Ankenbrandt v. Richards, 504 U. S. 689 (1992)—in which the high court limited the circumstances under which federal judges should abstain from interfering in disputes involving domestic relations, an area traditionally reserved to the states.

“The domestic relations exception is not a prudential limitation on our federal jurisdiction,” Rehnquist wrote. “It is a limiting construction of the statute defining federal diversity jurisdiction...which ‘divests the federal courts of power to issue divorce, alimony, and child custody decrees,’....This case does not involve diversity jurisdiction, and respondent does not ask this Court to issue a divorce, alimony, or child custody decree. Instead it involves a substantial federal question about the constitutionality of the School District’s conducting the pledge ceremony, which is the source of our jurisdiction. Therefore, the domestic relations exception to diversity jurisdiction forms no basis for denying standing to respondent.”

Rehnquist and O’Connor both also argued the high court should have deferred to the Ninth Circuit’s determination that Newdow had standing, since it was based at least in part on that court’s reading of California law. Stevens’ majority opinion conceded, Rehnquist pointed out, that the Supreme Court has a “settled and firm policy of deferring to regional courts of appeals in matters that involve the construction of state law.”

The court’s majority, Rehnquist, O’Connor and Thomas appeared to say, used the issue of Newdow’s legal standing as a fig leaf to avoid the harder constitutional issue. They made it clear that they would have upheld the religious reference.

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.

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 its ruling last year, the Ninth Circuit 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.

But 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 parents, who were never married, continue to litigate custody issues involving the child, and yesterday the Third District Court of Appeal rebuffed a constitutional challenge by Newdow to fees assessed against him in that litigation under Family Code Sec. 7640. Justice Richard M. Sims III rejected Newdow’s contention that the section unconstitutionally forces him to pay Banning’s attorney’s fees irrespective of the merits of his case and even if he prevails, solely because he has more money than she does.

Any intrusion of the statute on Newdow’s constitutionally protected interests “is justified by the compelling state interest in promoting the best interests of children involved in custody proceedings,” Sims wrote in Banning v. Newdow, C040840.

The full extent of the problems with the pledge case was not apparent until Banning weighed in, Stevens said yesterday. Her rights are at stake, and more importantly, the well-being of “a young child who finds herself at the center of a highly public debate,” he wrote.

The case is Elk Grove Unified School District v. Newdow, 02-1624.


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