SAN FRANCISCO – The atheist father who challenged the constitutionality of the Pledge of Allegiance (search) says the Supreme Court's (search) dismissal of the case represents "a blow for parental rights."
But the decision was so narrowly crafted that its impact will be muted, legal experts said. Some scholars suggested the decision even bolstered parental rights by upholding a Sacramento County family court order granting the daughter's mother absolute control of her upbringing.
The justices ruled Monday that because Michael Newdow (search) did not have legal custody of his daughter, he had no standing to bring a lawsuit on her behalf challenging the words "under God" in the pledge.
Without addressing the merits of the case, the decision overturns a federal appeals court's 2002 ruling that the pledge, with its 50-year-old reference to God, was an unconstitutional endorsement of religion when recited in public schools. The decision also overturned the appeals court that ruled Newdow could sue.
"When hard questions of domestic relations are sure to affect the outcome, the prudent course is for the federal court to stay its hand rather than reach out to resolve a weighty question of federal constitutional law," Justice John Paul Stevens wrote for five justices in the majority.
It was an anticlimactic end to an emotional high court showdown over God in the public schools and in public life. It also neutralizes what might have been a potent election-year political issue in which the Bush administration argued strongly that the reference to God should remain part of the pledge.
The outcome does not prevent a future court challenge over the same issue, however, and both defenders and opponents of the current wording predicted that fight will come quickly.
The mother, Sandra Banning (search), an Elk Grove Christian, wants her daughter to recite the pledge with the words "under God" and told the justices the girl, whose parents never married, does not object to it.
"The local court gave the decision-making authority to Ms. Banning. He tried to usurp that authority and do an end run around that with this constitutional claim," said Douglas Kmiec, a Pepperdine University School of Law professor.
Richard Barry, president of the American Academy of Matrimonial Lawyers, said the decision left intact the rights of parents.
"It seems to me it's not going to make a big impact on parental rights," Barry said.
Newdow, a Sacramento doctor and lawyer, is in a protracted custody fight with Banning.
When he sued to overturn the pledge in federal court, Newdow said his now 10-year-old daughter should not be exposed to God each school morning. The San Francisco-based 9th U.S. Circuit Court of Appeals agreed in a decision that prompted Congress to recite the pledge at the Capitol and drew outrage from Bush.
"She spends 10 days a month with me," he said. "The suggestion that I don't have sufficient custody is just incredible."
When the appeals court decided the case, according to Sacramento County family court documents, the mother had "sole legal custody as to the rights and responsibilities to make decisions relating to the health, education and welfare" of the daughter, whom the court did not name. A year later, the custody order was amended to give both parents "joint legal custody" but providing Banning the authority to make final decisions if the parents could not agree.
"The family court order was the controlling document at the time of the court of appeals' standing decision," Stevens wrote.
Newdow said the California family courts are unconstitutional and that a parent should not be stripped of his parental rights.
Chief Justice William H. Rehnquist agreed with the outcome, but still wrote separately to say that the pledge as recited by schoolchildren does not violate the Constitution. Justices Sandra Day O'Connor and Clarence Thomas agreed with him.
The First Amendment guarantees that government will not "establish" religion, wording that has come to mean a general ban on overt government sponsorship of religion in public schools and elsewhere.
The Supreme Court has already said that schoolchildren cannot be required to recite the oath that begins, "I pledge allegiance to the flag of the United States of America."
The court has also repeatedly barred school-sponsored prayer from classrooms, playing fields and school ceremonies.
The Bush administration had asked the high court to rule against Newdow, either on the legal question of his ability to sue or on the constitutional issue. The administration argued that the reference to God in the pledge is more about ceremony and history than about religion.
Elk Grove Unified School District Superintendent Dave Gordon called the pledge "a unifying, patriotic exercise that reflects the historical ideals upon which this great country was founded."
Congress adopted the pledge as a national patriotic tribute in 1942, at the height of World War II. Congress added the phrase "under God" more than a decade later, in 1954, when the Cold War was under way. Supporters of the new wording said it would set the United States apart from godless communism.
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