Elk Grove Unified School District v. Newdow, 542 U.S. 1 (2004)

Supreme Court declined to resolve the constitutionality of the inclusion of the words ‘‘under God’’ in the Pledge of Allegiance when recited in public schools. Instead, the Court found that the plaintiff in the case lacked standing to sue and thereby reversed a controversial decision by the U.S. Court of Appeals for the Ninth Circuit that had found the ‘‘under God’’ language in the Pledge when recited by public schoolchildren violative of the Establishment Clause.

A California school district required each elementary school class in the district to recite the Pledge of Allegiance every day. The father of a schoolchild objected, claiming that the inclusion of the words ‘‘under God’’ in the Pledge constituted religious indoctrination in violation of the Religion Clauses of the First Amendment (even though his daughter was not compelled to participate in the recitation). The U.S. Court of Appeals for the Ninth Circuit found that the recitation violated the Establishment Clause. This decision sparked a national controversy, and the U.S. Congress promptly passed a resolution—unanimously in the Senate and with only five nay votes in the House—condemning that decision.

The Supreme Court accepted review and held that the father, who was a noncustodial parent of the schoolchild, lacked standing to bring the action. The Court emphasized that the father’s standing derived entirely from his relationship with his daughter, and that their interests were not parallel and were potentially in conflict. Since the father lacked standing, the Court dismissed the case, thereby reversing the decision of the Ninth Circuit.

Three justices, however, dissented from the majority’s discussion of standing. These justices, all of whom wrote separate opinions, would have reached the merits of the case and found that the school recitation of the Pledge with the ‘‘under God’’ language did not offend the Establishment Clause. (A fourth justice, Antonin Scalia, recused himself from consideration of the case because of prior public comments critical of the Ninth Circuit’s ruling.)

In his separate opinion, Chief Justice William Rehnquist concluded that the recitation of the Pledge did not violate the Establishment Clause:

I do not believe that the phrase ‘under God’ in the Pledge converts its recital into a ‘religious exercise’ . . . . Instead, it is a declaration of belief in allegiance and loyalty to the United States flag and the Republic that it represents. The phrase ‘under God’ is in no sense a prayer, nor an endorsement of any religion . . . . Reciting the Pledge, or listening to others recite it, is a patriotic exercise, not a religious one; participants promise fidelity to our flag and our Nation, not to any particular God, faith, or church.

Justice Sandra Day O’Connor, in her opinion, argued that the recitation of the Pledge did not violate the ‘‘endorsement test.’’ For Justice O’Connor, quoting her earlier concurring opinion in Lynch v. Donnelly (1984), endorsement ‘‘sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.’’ Justice O’Connor concluded that recitation of the Pledge sent no such message. Justice O’Connor concluded that the ‘‘under God’’ language in the Pledge constituted an expression of ‘‘Ceremonial Deism’’ which did not offend the Establishment Clause.

Finally, Justice Clarence Thomas concluded that the recitation of the Pledge did violate the Establishment Clause as interpreted by the Court because it ‘‘coerced’’ young children ‘‘to declare a belief ’’ that this is ‘‘one Nation under God.’’ Hence, for Justice Thomas, ‘‘as a matter of our precedent, the Pledge policy is unconstitutional.’’ But, Justice Thomas went further, arguing that almost all of the Court’s prior Establishment Clause cases were wrongly decided because, in his view, the Establishment Clause does not apply to the states. Justice Thomas recognized that the Court in prior cases had ‘‘incorporated’’ the Establishment Clause through the Fourteenth Amendment to apply to the states, but he concluded that that incorporation was inappropriate as a matter of history. Because, in Justice Thomas’s view, the Establishment Clause does not apply to the states, the recitation of the Pledge by a local California school district was not unconstitutional.

In light of the resolution of the Elk Grove case on standing grounds, the constitutionality of recitations of the Pledge in public schools remains uncertain.

DAVISON M. DOUGLAS

References and Further Reading

• Collins, Todd, Lost in the Forest of the Establishment Clause: Elk Grove v. Newdow, Campbell Law Review 27 (2004): 1–38.
• Gey, Steven, ‘Under God,’ The Pledge of Allegiance, and Other Constitutional Trivia, North Carolina Law Review 81 (2003): 1865–925.
• Hancock, Kevin P., Comment: Closing the Endorsement Test Escape-Hatch in the Pledge of Allegiance Debate, Seton Hall Law Review 35 (2005): 739–88.

Cases and Statutes Cited

• Lynch v. Donnelly, 465 U.S. 668 (1984)

See also Ceremonial Deism; Establishment Clause (I): History, Background, Framing; Pledge of Allegiance (‘‘Under God’’)