Elk Grove Unified School District V. Newdow Critical Thinking Sample

Elk Grove Unified School District v. Newdow, 542 U.S. 1 (2004)
Elementary students at the Elk Grove Unified School District are made to recite the Pledge of Allegiance in a daily group recitation once each day. This practice was in compliance with a California law, i.e. Cal. Educ. Code Ann. §52720, that compels all public elementary schools to start the day with ‘appropriate patriotic exercises.’ The daughter of Michael Newdow attended the Elk Grove as a kindergarten student and, thus, was made to recite with other students the Pledge. Newdow, who is an atheist, contended that the Pledge, which contains the word ‘God’, violated the establishment clause of the First Amendment. At that time Newdow’s daughter was under the sole custody of his wife, whom he was separated previously.
Newdow brought his case to US District Court for the Eastern District of California against the US Congress, the US, President Clinton, Elk Grove Unified School District and Sacramento City Unified School District, and their superintendents. The case was referred to Magistrate Judge Peter Nowinski who recommended its dismissal on the grounds that it failed to state a claim. The recommendation was adopted by the District Court. Newdow then elevated the case to the US Court of Appeals for the Ninth Circuit, which reversed the decision. The Court held that Newdow had standing to bring a case against Elkwood Grove, but not against the Sacramento City Unified School District because his daughter was not attending it. In addition, it held that the Pledge of Allegiance violated the establishment clause. It thus, reversed the decision of the lower court. The mother of the child then filed a motion to challenge the standing of Newdow to bring the case to court on the grounds that she had sole custody of their daughter. The CA, however, affirmed its ruling finding standing on the part of the father (Elk Grove Unified School District v. Newdow, No. 02-1624, Supreme Court 2003). A petition for a writ of certiorari was then brought by Elkwood Grove et al before the US Supreme Court grounded on 2 issues: whether Newdow had standing to file the case, and whether the Pledge of Allegiance, which contains the word ‘God’ violated the First Amendment.

Supreme Court Decision

On the issue of standing, the SC held that Newdown had no legal standing. Under California law, Newdow had no legal standing to sue because he was barred and lost his right to sue as her daughter’s next friend by the family court’s grant of sole legal custody and legal control to the mother of the child. The significance of this is that Newdown brought the case not as a representative of his daughter, but as a non-custodial parent in conflict with the desire and wishes of the custodial parent on how their child’s education must proceed. In effect, allowing Newdown to bring a case that pertains to his daughter’s education imply undermining the decision and determination of the sole custodian, who is the mother. The Ninth Circuit as a federal court, according to the SC, had no authority to override the state family court decision granting the mother full custody and legal control over the child. Citing the cases of Allen v Wright, 468 U.S. 737, 751-752 (1984) and Wright v. Regan, 656 F.2d 820, 827 (D.C. Cir. 1981), the Court held injury stemming from government action can support standing, but the plaintiffs must show standing on the basis of personal injury from denial of equal treatment by such governmental action.
Since the Court held that the plaintiff had no standing, the issue of constitutionality became irrelevant and, hence, was not touched by the majority decision. Some justices, however, wrote separates opinions that touched on the matter, but since these were mere opinions they do not have the determinative effect of decisions. Chief Justice Rehnquist, joined by Justice O’Connor, wrote that the Pledge of Allegiance does not violate the establishment clause of the First Amendment because “the Pledge of Allegiance evolved as a common public acknowledgement of the ideals that our flag symbolizes. Its recitation is a patriotic exercise designed to foster national unity and pride in those principles” (citing Lee v. Weisman, 505 U. S. 577 (1992)). Rehnquist did not believe that the phrase ‘under God’ in the Pledge transformed it into a religious exercise or a religious prayer. It is simply, according to the Chief Justice, a reflection of the cultural history and tradition of the American people’s fundamental belief in one God. The Pledge is, thus, a patriotic exercise, and not religious in nature, where a person reciting promises fealty to the Flag and to the country, and not to any particular God, faith or Church. To make the phrase a violation of the establishment clause under the First Amendment, it must have the tendency to establish a particular religion. To allow Newdown to succeed in his claim to strike the Pledge as unconstitutional would be an unwarranted extension of the establishment clause.
Similarly, Justice O’Connor believed that the phrase in issue is simply ceremonial deism that reflects the nation’s religious history, which spurred the birth of the principles of liberty. Ceremonial deism, according to Justice Thomas, are those occasions in which the government can refer to the Divine without breaching the establishment clause when such occasions refer to the national motto, traditional patriotic songs, and the opening of sessions, such as court sessions of the SC. Justice Thomas believed that the history, character and context of such occasions trump constitutional violations.
Justice Thomas believed that the Pledge does not violate the establishment clause of the First Amendment. His rationale for this is that the coercive factor that necessarily attends the clause is not present nor has government authorized, maintained or created any religious establishment through the Pledge.

Impact of the Court Decision on the Constitutionality of Pledge

The impact of the Supreme Court decision is that it allowed the Court to sweep the issue of the Pledge’s constitutionality under the rug. In the words of CJ Rehnquist “the Court today erects a novel prudential standing principle in order to avoid reaching the merits of the constitutional claim” (Rehnquist CJ 2004). Since the Court, through the majority decision, had skirted the issue of the Pledge’s constitutionality, the implication is that this aspect has not been fully settled yet. Although several members of the Court, including the Chief Justice, have given their separate opinions as to the matter, these opinions have no coercive value, but merely persuasive, as they are not the official stand of the Court.
Thus, the question as to the constitutionality of the Pledge remains unsettled and debate as to whether it is or is not constitutional continues. This has created confusion as a result. In 2007, for example, some fifty high school students of a Colorado school walked out from their classes during the recitation of the Pledge. They recited their own Pledge omitting the phrase ‘under God.’ A student claimed religious oppression listening or reciting the Pledge of Allegiance (Bowen 2008). On the other hand, Congressmen who opposed the 9th Circuit decision immediately showed their opposition to the decision by lining up the steps of Congress in 2002 and reciting the Pledge. Both Houses of Congress subsequently filed a Bill reaffirming the inclusion of the phrase in issue in the Pledge as well as “In God We Trust” as the nation’s motto. The Bill was approved by President George W. Bush that same year (Colvin 2003, pp. 1, 6).
Prouser (2005) stated that the lack of final resolution as to the status of the ‘under God” component of the Pledge resulted in a lost opportunity to clarify the viability of the Lemon Test established in the case of Lemon v. Kurtzman, 403 U.S. 602 (1971) . The Lemon Test, which is constituted by the three tests, namely, the purpose test, the excessive entanglement test, and the primary effect test, has been questioned in several SC decisions, such as Wallace v. Jaffree, 472 U.S. 38 (1985) and by several scholars as “inconsistently applied, unprincipled, and too easily manipulated” (Hall et al 2005, p. 579). In sum, the Elk Gove decision has further stirred the controversy on Pledge, but has failed to resolve it because of the standing issue.

Personal Opinion on the Nature of the Pledge of Allegiance and Use in Schools

The Pledge of Allegiance reads “I pledge allegiance to the Flag of the United States of America, and to the Republic for which it stands, one Nation under God, indivisible, with liberty and justice for all.” I would have argued that the recital does not in any way advocate any particular religion, but then a Supreme Court decision, Torcaso v Watkins, 367 U.S. 488 (1961), declared secular humanism as religion. Thus, the incorporation of the words ‘under God’ in the Pledge supports the idea that it reinforces belief in a God as opposed to a belief that does not involve God or any gods. This implies favoring a group of religion, those that believe in God, over another religion, one that does not believe in God.
If the intention of the government is to enforce the establishment clause seriously, the phrase ‘under God’ should be deleted and restore it to its original form that does not mention this phrase. The Justices could expound on the history and the underpinning of cultural traditions of liberty, but the fact remains that when schools require students to daily recite the Pledge of Allegiance with the words ‘under God’ it has only one connotation – that the students are made to affirm the belief of the existence of God as opposed to not believing in any God at all.

References

Bowen, J. (2008). “One Nation, Under God”: Discussing the Unsettled Issue of Elk Grove Unified School District v. Newdow. BYU Prelaw Review, Vol. 22.
Colvin, A. (2003). The Pledge of Allegiance Controversy: Is America “One Nation Under God”? International Religious Freedom Report, vol. 4, no. 3, http://religiousfreedom.com/PDF/nwslttr/icrfrpt0103web.pdf.
Elk Grove Unified School District v. Newdow, 542 U.S. 1 (2004).
Hall, K., Ely, J. and Grossman, J. (2005). The Oxford Companion to the Supreme Court of the United States. Oxford University Press.
Prouser, R. (2005). Elk Grove Unified School District v. Newdow. Journal of Gender, Social Policy & the Law, vol. 13, no. 1.