Justices Keep ‘God’ in Pledge of Allegiance

WASHINGTON —  The Supreme Court, ruling on Flag Day, preserved the wording of “one nation, under God” in the Pledge of Allegiance and threw out a lawsuit Monday that had challenged it as a form of state-mandated religious indoctrination.

But the court stopped short of upholding the pledge as constitutional.

In a 5-3 decision, the justices said that because the California father who brought the lawsuit did not have custody of his daughter -- and did not share her view of the pledge -- he was not entitled to speak for her in the courts.

By disposing of the case on procedural grounds, the justices ducked a final ruling on the legality of the pledge and its reference to God. The decision leaves the door open for another parent on the West Coast to bring a similar lawsuit that challenges the reference to God in the pledge. Presumably, the San Francisco-based appellate court that struck down the pledge would stand by its view that the pledge is unconstitutional if it includes the reference to God.

Monday’s opinion does not contain many clues as to how the full Supreme Court would resolve the issue if forced to decide it.

The court’s announcement came on the 50th anniversary of the adoption of the revised pledge. The original version, written in 1892, spoke of “one nation, indivisible,” a reference to the Civil War and the divide between North and South.

At the height of the Cold War in 1954, Congress amended it to refer to “one nation, under God, indivisible, with liberty and justice for all.” Sponsors of the change said they wanted to show how America differed from the “godless communism” of the Soviet Union.

Two years ago, the U.S. 9th Circuit Court of Appeals in San Francisco set off a national uproar when it struck down the pledge as unconstitutional. Its decision cited a Supreme Court ruling that barred public schools from invoking God’s name at a formal graduation ceremony.

California law requires elementary schools to begin the day with “appropriate patriotic exercises,” and most schools comply by reciting the pledge. However, students are not required to say the words. Under a Supreme Court ruling handed down during World War II, the government may not force any person to affirm a particular belief.

Dr. Michael Newdow, an atheist from the Sacramento area, objected to the pledge because teachers were calling on pupils to “put your hand over your heart” and affirm a belief in God, as he put it. He sued on behalf of himself and his daughter, who was enrolled in the Elk Grove Unified School District.

In a 2-1 ruling, a panel of the 9th Circuit declared the pledge unconstitutional as written. When the issue was appealed to the full 9th Circuit, the girl’s mother, Sandra Banning, told the judges that she had legal custody of her daughter. Moreover, the young girl is a Christian who believes in God, and both mother and daughter said they had no objection to pledging her allegiance to “one nation, under God.”

But the full 9th Circuit stood by the original decision. A “noncustodial parent” has a legal right “to object to unconstitutional government action affecting his child,” the court ruled.

Last fall, the Supreme Court agreed to take up the case and focus on two questions. Did Newdow have the legal standing to object to the wording of the pledge? And if so, does a school district’s policy of leading students in pledging allegiance to “one nation, under God” violate the 1st Amendment’s ban on laws “respecting an establishment of religion?”

Justice Antonin Scalia withdrew from the case because he earlier had criticized the 9th Circuit’s ruling at a religious-freedom rally in Fredericksburg, Va. His absence created the possibility of a 4-4 split among the justices, which would have affirmed the 9th Circuit’s ruling.

However, all eight justices voted Monday to reverse the 9th Circuit. But they did so for two quite different reasons:

The liberal-leaning majority, led by 84-year-old Justice John Paul Stevens, said that Newdow’s suit should have been dismissed because he did not speak for his daughter’s interests.

Unelected judges should be wary of making “constitutional pronouncements [on] matters of great national significance,” Stevens said. They should do so only when people complain that they are being harmed in some way by the government’s action.

Because Newdow does not speak legally for his daughter, “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,” Stevens concluded in Elk Grove Unified School District vs. Newdow. He was joined by Justices Anthony M. Kennedy, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

Meanwhile, the three other justices, led by Chief Justice William H. Rehnquist, would have allowed Newdow to sue but would have ruled against him and upheld the pledge.

“Reciting the pledge, or listening to others recite it, is a patriotic exercise, not a religious one,” Rehnquist said. “Participants promise fidelity to our flag and our nation, not to any particular God, faith or church.” Justices Sandra Day O’Connor and Clarence Thomas agreed.

In the most extraordinary opinion of the day, Thomas said he did not accept the common view that the 1st Amendment prohibited the states from establishing an official religion. The 1st Amendment says, “Congress shall make no law respecting an establishment of religion,” but since the 1940s, the court has read this provision as forbidding the government in general from endorsing an official religion.

“Quite simply, the Establishment Clause is best understood as a federalism provision -- it protects state establishments from federal interference but does not protect any individual right,” Thomas wrote. It “was intended to protect ... state establishments of religion.”

If this were so, a state might be able to sponsor an official church and collect tax money to support it, as was done during the Colonial era.

David Gordon, superintendent of the Elk Grove school district, said in a phone interview Monday: “I’m pleased that it is resolved, at least for the immediate term, for us and all other school districts in America.”

Few, if any, school districts have stopped reciting the pledge or have omitted the words “under God” since this case began, said Scott Plotkin, executive director of the California School Boards Assn. “Nobody had changed what they were doing,” he said. “They were just awaiting the outcome of the court case.”

How the Supreme Court might rule if forced to decide the issue remained unclear Monday.

On one hand, Stevens described the flag and the pledge in glowing terms. The U.S. flag “serves as a symbol of our country and of its proud traditions of freedom, of equal opportunity, of religious tolerance and of good will for other peoples who share our aspirations,” he wrote. “The Pledge of Allegiance evolved as a common public acknowledgment of the ideals that our flag symbolizes. Its recitation is a patriotic exercise designed to foster national unity and pride in these principles.”

However, Stevens was a pupil in the late 1920s and the 1930s, long before the pledge included the words “under God.” He also is a leading advocate of the separation of church and state. So are Souter, Ginsburg and Breyer.

A key vote in Monday’s decision was cast by Kennedy. He has joined his conservative colleagues in upholding public aid for religious schools, but he also wrote the 1992 opinion for a liberal majority that bars official invocations of God in school ceremonies. Had Kennedy voted with Rehnquist in the pledge case, the result would have been a 4-4 tie, and that in turn would have affirmed the decision of the 9th Circuit.

Newdow said he was upset by the decision, but ready to try again. “I still think it’s unconstitutional,” he said. “This will come back. They have only postponed a decision. Other parents who have custody have contacted me and said, ‘Let’s do it again and use our kid this time.’ If they want me to represent them, I will.”

Defenders of the pledge said they were relieved by the ruling.

The court “has removed a dark cloud that has been hanging over one of the nation’s 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 the government,” said Jay Sekulow, chief counsel for the American Center for Law & Justice, which advocates for religious rights.

But a leading advocate of church-state separation said he was disappointed that the court had avoided a final ruling. “Students should not feel compelled by school officials to subscribe to a particular religious belief in order to show love of country,” said the Rev. Barry Lynn, executive director of Americans United for Separation of Church and State. “The justices ducked this issue today, but it’s certain to come back in the future.”

Times staff writer Erika Hayasaki in Los Angeles contributed to this report.