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Elk Grove Unified School District v. Newdow

(Redirected from Michael Newdow)

Newdow v. United States Congress, Elk Grove Unified School District, et al. 124 S.Ct. 2301 (2004) was a lawsuit filed in the United States in 2000 which resulted in a 2002 ruling by the United States Court of Appeals for the Ninth Circuit that the phrase "under God" in the Pledge of Allegiance constitutes an endorsement of religion, and therefore violates the Establishment Clause of the First Amendment to the United States Constitution. The case was appealed to the Supreme Court, which agreed to hear the case; renamed Elk Grove Unified School District v. Newdow, the ruling of the Ninth Circuit was overturned by the Supreme Court on June 14, 2004, because the plaintiff, Michael Newdow, lacked legal standing to bring suit. The Court did not address the constitutionality of the pledge.



Michael Newdow, a California atheist, sued his noncustodial daughter's school district in March 2000 for unconstitutional endorsement of religion embodied by her teacher leading the class in reciting the Pledge of Allegiance; the suit was brought in the United States District Court for the Eastern District of California, based in Sacramento. His suit also challenged the constitutionality of Congress's 1954 introduction of the phrase "under God" into the text of the pledge. The suit was dismissed later that year by the District Court.

Ninth Circuit Court of Appeals Ruling

The case was appealed and, in a 2-1 majority, the Ninth Circuit reversed the district court, upholding Newdow's claim on June 26, 2002. The court opinion was written by Judge Alfred T. Goodwin with a partial concurrence and partial dissent written by Judge Ferdinand F. Fernandez .

The case is complicated by the fact that Newdow, who was never married to the mother of his daughter, is not the custodial parent, and so there was question as to whether he had standing to bring the case to lawsuit.

Establishment Clause

The opinion of the court reviews the case with respect to the criteria the Supreme Court has used in the past to determine if the Establishment Clause is violated. With respect to all these tests, the "Lemon test", "endorsement test", and the "coercion test", the court determined that the 1954 "under God" addition was unconstitutional.

In Judge Fernandez's partial dissent, he asserts that the religious content of the 'under God' addition is so small that it is de minimis, so trivial as to be properly beneath judicial notice.

After the court ruled, it was asked to consider the case for en banc review, but this request was denied by the Court. In this ruling, Judges Goodman and Fernandez slightly amended their opinions.


Another issue relevant to the case is that of legal standing. After reviewing relevant precedents, the Ninth Circuit court asserted that Newdow had standing to challenge "a practice that interferes with his right to direct the religious education of his daughter", but this did not account for legal custody.

After the first ruling of the Ninth Circuit but before the en banc decision, the mother and legal custodian of the child filed a motion that challenged Newdow's standing to sue the case.

On December 4, 2002, the Circuit Court denied this motion. It ruled that even though Newdow is not the custodial parent, he maintained certain rights over the child and so should be permitted to continue his case. The court concluded that "the pledge to a nation under God, with its imprimatur of governmental sanction, provides the message to Newdow's young daughter not only that non-believers, or believers in non-Judeo-Christian religions, are outsiders, but more specifically that her father's beliefs are those of an outsider, and necessarily inferior to what she is exposed to in the classroom."

On September 11, 2003 Newdow was awarded partial custody, including joint legal custody.

Supreme Court

The United States Supreme Court agreed to hear the case on March 24, 2004.

Justice Antonin Scalia recused himself from the case after a request by Newdow that cited Scalia's disapproval of the Ninth Circuit decision in a public speech. According to Scalia, many lower courts often misinterpret the Establishment Clause, extending its proscription of religiousness in the public sphere.

Without ruling on the constitutionality of the pledge, the Supreme Court unanimously overturned the decision of the Ninth Circuit on June 14, 2004. However, the legal reasoning for the decision was not unanimous.

In an opinion written by Justice John Paul Stevens, a five-justice majority asserted that Newdow, as a noncustodial parent, had no legal right under California state law to act as his daughter's legal representative, and therefore no standing under the Constitution to bring suit on her behalf in federal court.

In his opinion concurring in the reversal, Justice Clarence Thomas agreed with the Chief Justice that Newdow did have standing, but that because the action was not "coercive", it was not unconstitutional (which is an opinion he points out does not align with previous Supreme Court precedents). Because of earlier rulings, the school cannot require any student to recite the pledge, but it was argued that the social stigma of non-participation should be taken into account. The Thomas opinion declared that only coercion "by force of law and threat of penalty" was prohibited, not indirect influence through peer pressure.

Justice Thomas also held the unusual opinion that the Establishment Clause did not apply to individuals, because it was intended as a federalism measure - to give state governments, six of which did have established religions at the time of the founding, exclusive jurisdiction over regulation of religion, free from interference from Congress. But in a footnote to his decision, he wrote (links added): "It may well be the case that anything that would violate the incorporated Establishment Clause would actually violate the Free Exercise Clause, further calling into doubt the utility of incorporating the Establishment Clause." In an opinion concurring in the reversal, but pointedly dissenting as to the reasoning, Chief Justice William Rehnquist, joined in part by two other justices, asserted that Newdow did have standing but that the term "under God" does not endorse or establish religion. Instead, they asserted that the term merely acknowledges the nation's religious heritage, in particular the role of religion for the Founding Fathers. By this reasoning, which does not constitute the precedent of a majority, the recital of the phrase in the Pledge is a secular act rather than an act of indoctrination in religion or expression of religious devotion.

Public opposition

Shortly after the ruling of the Ninth Circuit court, about one hundred and fifty members of the U.S. House of Representatives stood on the front steps of the Capitol and recited the Pledge including the words under God. Also, the U.S. Senate passed a non-binding resolution and a bill reaffirming the presence of under God in the Pledge, which President George W. Bush signed into law on November 13, 2002.

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Last updated: 05-21-2005 01:13:40