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One Nation Indivisible? The Supreme Court okays 'under God' in pledge for now

June 14, 2004

On Monday, June 14, in the case Elk Grove Unified School District v. Michael Newdow, the US Supreme Court has allowed the phrase "under God," which Congress inserted into the Pledge of Allegiance fifty years ago, to stand for the time being. The Atheist Community of Austin co-filed an amicus brief on behalf of Michael Newdow, a fellow atheist whose challenge to the theistic reference was upheld by a lower court. The separation between church and state, as set down by the Establishment Clause of the First Amendment, has been an important issue in the matter.

However, the Supreme Court's 8-0 ruling against the lower court's decision was largely the result of a technicality, with the Justices' actual opinions divided. Writing for the majority, Justice John Paul Stevens, joined by Justices Anthony Kennedy, David Souter, Ruth Bader Ginsburg, and Stephen Breyer, argued that Newdow, who challenged the current Pledge on behalf of his daughter, lacked the custodial standing to bring the case, siding with only one of the objections in the amicus brief filed by Sandra L. Banning, the child's mother and also a devout Christian. (The Counsel of Record for Banning was attorney Kenneth W. Starr, the former US Solicitor General under President George H. W. Bush, and also the former Independent Counsel in charge of investigating President Bill Clinton.) In a dissenting opinion, Chief Justice William Rehmquist, joined by Justice Sandra Day O'Connor and (in part) by Justice Clarence Thomas, said that Newdow had the right to bring the case to court, but that the words "under God" do not violate the Establishment Clause; Justices O'Connor and Thomas wrote their own separate opinions as well. Justice Antonin Scalia had recused himself from the case.

A useful guide to the case can be found at the website Restore our Pledge of Allegiance. Amicus briefs in support of both sides can be accessed here, including Banning's overall position. One can also read the amicus brief co-filed in support of Newdow by the Atheist Community of Austin, Seattle Atheists, Secular Coalition for America, and Institute for Humanist Studies.

At the Supreme Court's own website, one can also examine the oral arguments that were presented before the Justices in this case on March 24. Here Newdow himself addresses the issue of standing with the argument that Banning can raise their child as she wishes but that the state itself has no business promoting religion. He notes that "there's a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses [also from the First Amendment] protect." Newdow's argument distinguishes Banning's parental involvement from the state's interference, but the Supreme Court's decision nevertheless dismisses Newdow's standing on custody grounds without taking a position on the government's promotion of a monotheistic entity.

Still, by declining to rule on the constitutionality of the theistic reference itself in this election year, majority opinion on the Supreme Court has left open the possibility for another student, or another student's parent, to pursue a similar case in the future. The Atheist Community of Austin will continue to report on, as well as support, challenges to the current Pledge of Allegiance on the principle of church-state separation.

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