Elk Grove Unified School Dist. v. Newdow (2004)

Issue

Whether a public school policy requiring teachers to lead willing students in reciting the Pledge of Allegiance violates the First Amendment Establishment Clause since the Pledge contains the words “under God” by congressional act. Additionally, whether the father suing on behalf of his daughter has standing at all.

Facts

Elk Grove Unified School District EGUSD, in compliance with a districtwide policy and a state law, begin every school day with a teacher leading their students in reciting the Pledge of Allegiance. The Pledge recited is the one codified by Congress in 1954, which contains the words “under God” in addition to the rest of the Pledge that was initially codified in 1942. Michael Newdow’s daughter attends classes at EGUSD and sued the school district, arguing that his daughter is injured by having to hear her teacher lead students in the Pledge, which proclaims that there is a God. The district court sided with the school district, but the Ninth Circuit sided with Newdow on appeal. 

CCJ filed an amicus curiae brief in support of Elk Grove Unified School District

Summary:

Whether or not Newdow has standing to challenge the constitutional violations he alleges, this Court should eliminate the disparity in how it treats structural constitutional violations. The Establishment Clause has neither more nor less of a preferred place in our constitutional order than other provisions of the Constitution.

The addition of the words “under God” to the Pledge, and the school district's policy and practice of teacher-led recitation of the Pledge, do not violate the Establishment Clause. The people who wrote and ratified the Establishment Clause never intended it to be read to prohibit a school district or a state from encouraging a profound respect for the Creator who is the source of all our rights. Indeed, the best evidence suggests just the opposite: The Establishment Clause was designed not just to prevent the establishment of a national church but to prohibit the federal government from interfering with state encouragement of religion as the states exercised their core police powers to protect the health, safety, welfare, and morals of the people. To hold that the Constitution prohibits the State or school district from allowing the recitation of a pledge that acknowledges the existence of God would ignore the history and intent of the First Amendment and would undermine the efforts of the States to foster the kind of moral virtue the Founders thought essential to the perpetuation of republican institutions.

Final Outcome

The Supreme Court did take this case and handed down a rare unanimous opinion, this time written by Justice Stevens. The majority held that Newdow lacked the standing to pursue his crusade against the Pledge, and thus allowed the Pledge to continue in EGUSD. However, this opinion failed to address the constitutionality of the “under God” phrase in the Pledge entirely, which CCJ had argued should be upheld as constitutional, consistent with the intent of the Founders. Several Justices wrote concurring opinions noting that reciting the Pledge, including the “under God” phrase, should be considered constitutional.