| Elk
Grove Unified School District v. Newdow 124
S. Ct. 2301 (2004)
Rothgerber
Johnson & Lyons Religious Institutions Group Copyright,
August 2004 On
June 14, 2004, the Supreme Court handed down its much-anticipated decision in
Elk Grove Unified School District v. Newdow, which challenged the constitutionality
of the Pledge of Allegiance. Despite four separate opinions by members of the
Court, the question regarding the Pledge's constitutionality remains unresolved.
Michael
A. Newdow, the atheist father of a public school student, filed a lawsuit in federal
court claiming that his daughter's school-mandated and teacher-led recitation
of the Pledge of Allegiance that included the words "under God" violated the Establishment
and Free Exercise Clauses of the U.S. Constitution. Although the parents shared
joint custody, the mother had the final decision as to matters upon which they
could not agree. The trial court dismissed the father's case, finding that the
Pledge did not violate the Establishment Clause. The Ninth Circuit, however, reversed
that decision, finding that the father could challenge the public school's practice
that interferes with his right to direct the religious education of his daughter
and that the "under God" language violated the Establishment Clause. The
Supreme Court took the case to consider two questions: (1) whether the father
had standing as a non-custodial parent to challenge the policy; and (2) if so,
whether the policy offends the First Amendment. The Court determined that the
father did not have standing to bring the suit. The Court observed that a state
court had found that the father lacked the right to sue on behalf of his daughter
and that the father's real desire was to forestall his daughter's exposure to
religious ideas that her mother endorses and to use his parental status to challenge
the influences to which his daughter may be exposed in school when the father
and mother disagree. The Court also noted that the policy does not impair the
father's right to instruct his daughter in his religious views. In reversing the
Ninth Circuit's judgment, the Court observed that family law rights are largely
a matter of state law and that the most prudent course for a federal court to
take when a claimant's standing before a court is premised upon questions of domestic
relations is to refuse to entertain the claim. Because the Court found that the
father lacked the necessary standing to challenge the policy, the Court did not
reach the issue whether the "under God" language violates the First Amendment.
Justice Scalia took no part in the consideration or decision of the Court because
he recused himself from the cases based upon a private speech he made in which
he expressed his views. Joined by Justice O'Connor and in part by Justice Thomas,
Chief Justice Rehnquist concurred in the Court's judgment, but disagreed with
the "new" prudential standing principle adopted by the Court. These three justices
concluded that the father had standing to challenge the policy based upon his
relationship to his daughter and his rights and interests associated with that
relationship, including his right to expose his daughter to his religious views.
For the Chief Justice and Justice O'Connor, the public school policy that requires
teachers to lead willing students in reciting the Pledge, which includes the words
"under God," does not violate the Establishment Clause. The Chief Justice's opinion
recounts a number of examples of patriotic invocations of God and official acknowledgments
of religion's role in the nation's history and indicates that the Pledge is a
patriotic observance focused primarily on the flag and the nation and only secondarily
on the description of the nation as "under God." According to this opinion, the
national culture allows public recognition of the nation's religious history and
character, and the phrase "under God" in the Pledge neither converts its recital
into a "religious exercise" nor constitutes a prayer or an endorsement of any
religion. Those who recite the Pledge promise fidelity to the flag and the nation,
not to any particular God, faith, or church, and the recital of the descriptive
phrase "under God" in a patriotic ceremony cannot possibly lead to anything resembling
an establishment of a religion. Although
she fully concurred in the Chief Justice's opinion, Justice O'Connor also wrote
separately to explain the principles that guide her own constitutional analysis.
Justice O'Connor believes that when government-sponsored speech or displays are
challenged, the endorsement test captures the essential command of the Establishment
Clause (i.e., that government must not make a person's religious beliefs relevant
to his or her standing in the political community by conveying a message that
religion or a particular religious belief is favored or preferred). For Justice
O'Connor, government may, without violating the Constitution, acknowledge or refer
to the divine in a discrete category of cases she calls "ceremonial deism." An
instance of ceremonial deism-such as the national motto, religious references
in traditional patriotic songs, and the words used to open the Court's sessions-is
determined based upon its history, character, and context and whether it conveys
a message to a reasonable person that those who do not adhere to its literal message
are political outsiders. Justice O'Connor found the Pledge to constitute an instance
of ceremonial deism based upon her analysis of four factors: (1) the history and
ubiquity of the practice, (2) the absence of worship or prayer, (3) the absence
of reference to a particular religion, and (4) the minimal religious content.
She indicated that she would reach the same result under the coercion test.
Exhibiting remarkable candor and thoughtful reflection, Justice Thomas wrote that
the Court's Establishment Clause jurisprudence is in a state of "confusion [that]
has led to results that can only be described as silly," and he offered his opinion
to begin the process of rethinking the Establishment Clause. For Justice Thomas,
the Ninth Circuit correctly applied the Supreme Court's jurisprudence when it
determined that the Pledge's inclusion of "under God" violated the Establishment
Clause. He is of the opinion, however, that some of these Supreme Court decisions
were wrongly decided.
Even more remarkably, Justice Thomas declared that, although the Free Exercise
Clause and its protection of an individual right apply against the states through
the Fourteenth Amendment, the Establishment Clause is a federalism provision that
resists incorporation under the Fourteenth Amendment. The history and text of
the Establishment Clause strongly suggest that it was intended to prevent Congress
from interfering with state establishments of religion and from establishing a
national religion and that it was not intended to protect any individual right.
For Justice Thomas, the Pledge policy is not implicated by any sensible incorporation
of the Establishment Clause-government has not created or maintained any religious
establishment, granted government authority to an existing religion, or exposed
anyone to legal coercion associated with an established religion. Although the
policy implicates a religious liberty right protected by the Fourteenth Amendment,
no free exercise rights are at issue, and the policy fully comports with the Constitution.
Practical
Significance
Although three members of the Court found that the Pledge
policy did not violate the Constitution and a fourth would likely uphold the policy,
the views of the remaining five members of the Court are not clearly known. Although
the Court avoided the constitutional question in this case, the Court will again
be presented with the issue, and perhaps at that time some resolution will be
reached. Regardless, this case demonstrates well the need for the Court to overhaul
its Establishment Clause jurisprudence, and the opinion of Justice Thomas is a
welcome invitation for the Court's wholesale reconsideration. |
