June 14, 2004


Supreme Court Dismisses Pledge Case on Technicality: Justices Do Not Decide Constitutionality of Reference to God in Pledge of Allegiance (The Associated Press, June 14, 2004)

The Supreme Court preserved the phrase "one nation, under God," in the Pledge of Allegiance, ruling Monday that a California atheist could not challenge the patriotic oath but sidestepping the broader question of separation of church and state.

At least for now, the decision -- which came on Flag Day -- leaves untouched the practice in which millions of schoolchildren around the country begin the day by reciting the pledge.


Supreme Shocker—'Under God' Stays Because of a Technicality: Supreme Court says Michael Newdow doesn't have authority to speak for his daughter. Plus: Reactions from conservative Christian advocacy organizations. (Ted Olsen, 06/14/2004, Christianity Today)

[I]t's the "concurring" opinion that readers will find most interesting. That word concurring is a bit of a misnomer, since the three judges who signed on only agree with the majority that the case should be dismissed. They disagree strongly with just about everything else in the majority opinion.

Chief Justice William H. Rehnquist, who during oral arguments said that the merits of the case "certainly have nothing to do with domestic relations," accused the majority of chickening out. "The Court today erects a novel prudential standing principle in order to avoid reaching the merits of the constitutional claim," he wrote. "Although the Court may have succeeded in confining this novel principle almost narrowly enough to be, like the proverbial excursion ticket—good for this day only—our doctrine of prudential standing should be governed by general principles, rather than ad hoc improvisations."

Rehnquist, Sandra Day O'Connor, and Clarence Thomas say Newdow should have lost not because he didn't have the right to bring the case, but because the Pledge of Allegiance is constitutional. But even within the concurring opinion there's enough dissent that O'Connor and Thomas each wrote their own opinion in addition to signing on to that of Rehnquist.

Posted by Orrin Judd at June 14, 2004 11:36 AM

This was the right decision. You can't sue if you don't have any business suing.

The Court uphold a centuries' old principle today while at the same time allowing "Under God" to stand, at least as a practical matter. Conservatives should be happy.

Posted by: EO at June 14, 2004 2:23 PM

Another case will come along soon, one they won't be able to sidestep in the same way. But perhaps the 9th Circuit will get the message from the 8-0 vote.

Posted by: jim hamlen at June 14, 2004 4:39 PM


Sure. What the heck business does a father have in his daughter's schooling, anyway?

Posted by: Jeff Guinn at June 14, 2004 5:54 PM

I'm all for strict standing rules -- lots of mischief would be avoided if the courts took standing seriously. On the other hand, my reading of this is that, without Scalia, the court didn't have enough votes to simply rule that the pledge was constitutional. No doubt that's because, under the law as it currently stands, Newdow is right.

Posted by: David Cohen at June 14, 2004 6:26 PM

I'm not terribly surprised. The Court has a habit of ducking tough social-policy issues through one means or another. On the other hand, they did rule correctly on the standing issue; apparently the extent of that particular problem didn't become apparent until the mother filed her amicus brief with the Court. I found Newdow's assertion that he's the "best parent ever" because he spends 10 days a month with his daughter risible, by the way.

Posted by: Joe at June 14, 2004 7:20 PM

And yet conservatives are going to abandon Bush in November. I know this because the NY Times told me so.

I have never attempted to read Supreme Court decisions, and was pleasantly surprised by the readability of those issued in this case. One definitely gets the feel that David is right. I particularly enjoyed the argument of Justice Thomas, who would agree and notes that that's because precedent is wrong.

Posted by: brian at June 14, 2004 8:08 PM

Jeff: EO is absolutely correct. Standing is a doctrine that the court has sadly negleected in recent years. Newdow, as I understand the facts, does not have custody of the child and does not have the right to determine the course of her education or religious upbringing. If her mother can take her to church every Sunday, her father has no standing to complain about the Pledge of Allegance.

Posted by: Robert Schwartz at June 14, 2004 10:29 PM