Monday, June 14, 2004
I offer you, my loyal readers, a comparison. As you probably know by now, the Supreme Court threw out Michael Newdow's challenge to Pledge of Allegiance, saying he did not have legal standing to sue. First you will see the Washington Post.com's account of the story, then Foxnews.com's.
Supreme Court Dismisses Pledge Case on Technicality
Justices Do Not Decide Constitutionality of Reference to God in Pledge of Allegiance
By William Branigin and Charles Lane
Washington Post Staff Writers
Monday, June 14, 2004; 1:30 PM
The Supreme Court ruled today that a California atheist did not have the legal standing to challenge the constitutionality of the words "under God" in the Pledge of Allegiance, dismissing on procedural grounds a lower court's ruling in his favor but sidestepping the broader question of whether the pledge itself is constitutional.
The ruling effectively preserved the phrase "one nation under God" that is recited daily as part of the pledge by millions of schoolchildren across the country.
But by basing the decision on a procedural issue, the Supreme Court left open the prospect that a challenge to the constitutionality of the Pledge of Allegiance could come up again.
In a ruling that, coincidentally, was issued on Flag Day -- and on the 50th anniversary of the addition by Congress of the words "under God" to the pledge -- the justices voted 8-0 to overturn a ruling two years ago by the 9th U.S. Circuit Court of Appeals that the pledge was unconstitutional in public schools because it violated the separation of church and state. Justice Antonin Scalia did not participate in the case.
Five of the justices voted against the 9th Circuit's ruling on the grounds that Michael Newdow, the California atheist who filed suit to ban the pledge from his daughter's school, did not have the legal standing to speak for the girl because he did not have sufficient custody to qualify as her legal representative. The girl, who is in elementary school, was not named in the case.
Chief Justice William H. Rehnquist and two other justices -- Sandra Day O'Connor and Clarence Thomas -- agreed that the lower court's ruling should be overturned, but not on the standing issue. Instead, they argued that the words "under God" in the pledge do not violate the Constitution.
"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.
Newdow, a emergency-room doctor and law graduate who acted as his own attorney, is involved a custody battle with his daughter's mother, Sandra Banning, a born-again Christian who has custody of the girl on school days. Banning, who has never been married to Newdow, has told the court that she has no objection to her daughter's reciting the pledge.
Newdow rejected the ruling that he lacked legal standing to speak for his daughter.
"She spends 10 days a month with me," he said, according to the Associated Press. "The suggestion that I don't have sufficient custody is just incredible. This is such a blow for parental rights."
He vowed to continue his fight. "The pledge is still unconstitutional," he said. "What is being done to parents is unconstitutional."
If the 9th Circuit's decision had been upheld, it effectively would have deleted the reference to God from the pledge as recited by millions of schoolchildren nationwide. The 9th Circuit's ruling had applied to nearly 10 million schoolchildren in California and eight other western states.
The words "under God" were added to the pledge by Congress on June 14, 1954, during the Cold War as a way to distinguish the United States from atheistic communism.
The 9th Circuit ruling sparked a furor when it was issued, drawing intense criticism from religious conservatives and opposition from the Bush administration.
The Bush administration's solicitor general, Theodore Olson, has argued that the pledge with those words did not constitute state-sponsored prayer, which is banned from public schools under a Supreme Court decision, or any sort of prohibited religious ritual. Instead, Olson has said, the reference acknowledges America's religious heritage in a ceremonial and historical sense and does not substantially differ from the motto, "In God We Trust," on U.S. currency.
In a separate action today, the Supreme Court also declined to allow former U.S. hostages in Iran to sue the Iranian government for $33 billion.
The U.S. Court of Appeals for the District of Columbia had ruled last year that legal action against the Iranian government in the case was barred by an agreement with Iran that led to the hostages' release after 444 days in captivity. The hostages, mostly diplomats, were seized in at the U.S. Embassy in Tehran and held until January 1980.
The Supreme Court declined, without comment, to reconsider the lower-court ruling.
Supreme Court Dismisses 'Pledge' Case
Monday, June 14, 2004
WASHINGTON — "One nation, under God," will remain, at least temporarily, in the Pledge of Allegiance (search), the Supreme Court ruled Monday, saying a California atheist could not challenge the patriotic oath.
But whether or not the pledge recited by generations of American schoolchildren is an unconstitutional blending of church and state was not directly addressed at the procedural ruling.
The court said the atheist could not sue to ban the pledge from his daughter's school and others because he did not have legal authority to speak for her.
The father, Michael Newdow (search), is in a protracted custody fight with the girl's mother. He does not have sufficient custody of the child to qualify as her legal representative, eight members of the court said. Justice Antonin Scalia (search) did not participate in the case.
"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 court.
Chief Justice William H. Rehnquist agreed with the outcome of the case, but still wrote separately to say that the Pledge as recited by schoolchildren does not violate the Constitution. Justices Sandra Day O'Connor (search) and Clarence Thomas agreed with him.
The high court's lengthy opinion overturns a ruling two years ago that the teacher-led pledge was unconstitutional in public schools. That appeals court 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.
The case involved Newdow's grade school daughter, who like most elementary school children, hears the Pledge of Allegiance recited daily.
The First Amendment (search) guarantees that government will not "establish" religion, wording that has come to mean a general ban on overt government sponsorship of religion in public schools and elsewhere.
The Supreme Court has already said that schoolchildren cannot be required to recite the oath that begins, "I pledge allegiance to the flag of the United States of America."
The court has also repeatedly barred school-sponsored prayer from classrooms, playing fields and school ceremonies.
The 9th U.S. Circuit Court of Appeals 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 of "one nation under God."
The Bush administration, the girl's school and Newdow all asked the Supreme Court to get involved in the case.
The administration had asked the high court to rule against Newdow, either on the legal question of his ability to sue or on the constitutional issue. The administration argued that the reference to God in the pledge is more about ceremony and history than about religion.
The reference is an "official acknowledgment of our nation's religious heritage," similar to the "In God We Trust" stamped on coins and bills, Solicitor General Theodore Olson (search) argued to the court.
It is far-fetched to say such references pose a real danger of imposing state-sponsored religion, Olson said.
Newdow claims a judge recently gave him joint custody of the girl, whose name is not part of the legal papers filed with the Supreme Court.
The child's mother, Sandra Banning, told the court she has no objection to the pledge. The full extent of the problems with the case was not apparent until she filed papers at the high court, Stevens wrote Monday.
Newdow holds medical and legal degrees, and says he is an ordained minister. He argued his own case at the court in March.
The case began when Newdow sued Congress, President Bush and others to eliminate the words "under God." He asked for no damages.
The phrase "under God" was not part of the original pledge adopted by Congress as a patriotic tribute in 1942, at the height of World War II. Congress inserted the phrase more than a decade later, in 1954, when the world had moved from hot war to cold.
Supporters of the new wording said it would set the United States apart from godless communism.
The case is Elk Grove Unified School District v. Newdow, 02-1624.
The Associated Press contributed to this report.
It's a pretty fascinating juxtaposition, from the title down to the phraseology. Godless communists, indeed.
Fair and balanced sure have taken on interesting meanings these days.
