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WASHINGTON — Sacramento atheist Michael Newdow’s quixotic challenge to the words “under God” in the Pledge of Allegiance came to an end Monday as the U.S. Supreme Court ruled 5-3 that he did not have standing to bring his suit. The decision in Elk Grove Unified School District v. Newdow, 02-1624, symbolically was announced on Flag Day and on the 50th anniversary of the signing of the law that inserted the words into the Pledge. It has the effect of sweeping away the controversial 2002 ruling by the Ninth Circuit U.S. Court of Appeals that found the Pledge, as recited in public schools, violated the First Amendment’s establishment clause. Justice John Paul Stevens, writing for the majority, recited Newdow’s tangled family history and concluded that Newdow has insufficient standing to raise a constitutional challenge on behalf of his daughter. Newdow never married, and is separated from, Sandra Banning, the girl’s mother. In their ongoing custody battle, a California judge has given Newdow partial custody but ruled that Banning has the “sole right” to make decisions about the girl’s education and legal interests. Because of these rulings, Stevens said, Newdow had been stripped of the right to sue as “next friend” to his daughter, though he added that someone with “next friend” status “surely could exercise that right.” Another reason Newdow lacks standing, Stevens said, is that nothing the school board has done in requiring willing students to recite the Pledge “impairs Newdow’s right to instruct his daughter in his religious views.” More broadly, Stevens said that family court determinations, like the ones that govern Newdow’s custody rights in California, are quintessentially state decisions that federal courts should not meddle in. “When hard questions of domestic relations are sure to affect the outcome,” Stevens wrote, “the prudent course is for the federal court to stay its hand rather than to reach out to resolve a weighty question of federal constitutional law.” For now, the ruling spares the court and the nation the election-year friction that a ruling on the merits of the case would have brought. But Newdow supporters said the court had ducked the issue on flimsy grounds and predicted the wording of the Pledge would be challenged again by another atheist whose standing to sue is unblemished. “Students who are outside the Judeo-Christian tradition should not be pressured by their teachers to put aside their beliefs in order to show love of country,” said Barry Lynn, executive director of Americans United for Separation of Church and State. “The compelling issues raised by this case won’t disappear because of today’s action by the Supreme Court.” Pledge supporters expressed satisfaction that the court had not found Newdow’s argument persuasive. “The Supreme 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 government,” said Jay Sekulow, chief counsel of the American Center for Law and Justice. Though avoiding the merits of the Pledge challenge, the Stevens majority, taken together with three separate concurring opinions by Chief Justice William Rehnquist and Justices Sandra Day O’Connor and Clarence Thomas, would give cold comfort to any future Pledge challenger. Stevens briefly recited the history of the Pledge, which he described as a “patriotic exercise designed to foster national pride and unity” rather than as any kind of religious expression. He said the Pledge also promoted values represented by the American flag, quoting from his own dissent in the 1989 case Texas v. Johnson, which struck down a state law criminalizing flag burning. In his concurrence, Rehnquist listed numerous religious invocations by presidents going back to George Washington, as well as other events that “strongly suggest that our national culture allows public recognition of our nation’s religious history and character.” The phrase “under God” does not convert the Pledge into a religious expression, Rehnquist added, and “cannot possibly lead to the establishment of a religion, or anything like it.” O’Connor agreed, also offering a definition for “ceremonial deism,” the phrase often used to describe routine public references to a deity that do not offend the First Amendment. The Pledge fits her definition, which includes tests for the history, commonness and content of the religious reference, and whether it refers to a particular religion. She said “under God” meets the test, even though not all religions recognize a single god. “One would be hard pressed to imagine a brief solemnizing reference to religion that would adequately encompass every religious belief expressed by any citizen of this nation,” O’Connor wrote. The ruling and concurrences suggest “critical mass” on the court in favor of the Pledge, said Joseph Kobylka, a constitutional law scholar at Southern Methodist University. “If this issue comes before them again, they would rule that the pledge of allegiance is constitutional,” he said. The closest a justice came to supporting Newdow’s assertions was the concurrence by Thomas, who said that under the court’s 1992 precedent Lee v. Weisman, the Ninth Circuit ruling in Newdow’s favor was “persuasive.” The Lee ruling said that even though attendance at graduations was not mandatory, reciting a prayer at graduations was unconstitutional because “peer pressure” would make students feel coerced into participating in a religious exercise. Under that theory, Thomas said, reciting the Pledge every day was “more troubling” than a one-time benediction at graduations. But Thomas went on to say that he thought Lee was “wrongly decided,” and also that the establishment clause should not apply to the states. Newdow’s handling of the case, as well as the issue itself, made headlines. Unlike many high court litigants, he insisted on arguing the case himself, dusting off his credentials as a lawyer. An emergency room physician, Newdow had also graduated from the University of Michigan Law School in 1988 but never practiced law. “I want an atheist. I want me,” he said. After practicing before nearly a dozen moot courts, Newdow won praise when he actually argued the case March 24. Newdow also raised eyebrows when he petitioned Justice Antonin Scalia to recuse in the case because of a speech Scalia had given in which he made it clear that he disapproved of the Ninth Circuit decision the high court was reviewing. Scalia apparently agreed and let it be known he would not participate. That gave Newdow a strategic boost — he would only need four votes to win instead of five — but in the end that made no difference, as none of the other eight justices sided with him. Last week, as the inevitable decision day approached, Newdow e-mailed to reporters a poem predicting that the ruling would come down on Flag Day: I feel it is incumbent upon me to report That some believe there’s poetry within our Supreme Court So be apprised that quite precisely fifty years ago The date the Congress chose to change the Pledge in ways you know Was June 14 — Flag Day — the year: 1954 Perhaps this year on that date they’ll choose to underscore That principles are sacrosanct and shouldn’t bend a smidgen It says, “NO law.” How perfect, for a government’s religion. Tony Mauro is Supreme Court correspondent for American Lawyer Media and The Recorder’s Washington, D.C., affiliate Legal Times. His e-mail address is [email protected].

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