542 U.S. 1 (2004), 02-1624, ELK Grove Unified Sch. Dist. v. Newdow

Docket Nº:No. 02-1624
Citation:542 U.S. 1, 124 S.Ct. 2301, 159 L.Ed.2d 98, 72 U.S.L.W. 4457
Case Date:June 14, 2004
Court:United States Supreme Court

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542 U.S. 1 (2004)

124 S.Ct. 2301, 159 L.Ed.2d 98, 72 U.S.L.W. 4457




No. 02-1624

United States Supreme Court

June 14, 2004

Argued March 24, 2004.

Rehearing Denied Aug. 23, 2004. See 542 U.S. 961, 125 S.Ct. 21.

[124 S.Ct. 2303] Syllabus [*] Petitioner school district requires each elementary school class to recite daily the Pledge of Allegiance. Respondent Newdow's daughter participates in this exercise. Newdow, an atheist, filed suit alleging that, because the Pledge contains the words "under God," it constitutes religious indoctrination of his child in violation of the Establishment and Free Exercise Clauses. He also alleged that he had standing to sue on his own behalf and on behalf of his daughter as "next friend." The Magistrate Judge concluded that the Pledge is constitutional, and the District Court agreed and dismissed the complaint. The Ninth Circuit reversed, holding that Newdow has standing as a parent to challenge a practice that interferes with his right to direct his daughter's religious education, and that the school district's policy violates the Establishment Clause. Sandra Banning, the child's mother, then filed a motion to intervene or dismiss, declaring, inter alia, that she had exclusive legal custody under a state-court order and that, as her daughter's sole legal custodian, she felt it was not in the child's interest to be a party to Newdow's suit. Concluding that Banning's sole legal custody did not deprive Newdow, as a noncustodial parent, of Article III standing to object to unconstitutional government action affecting his child, the Ninth Circuit held that, under California law, Newdow retains the right to expose his child to his particular religious views even if they contradict

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her mother's, as well as the right to seek redress for an alleged injury to his own parental interests.


Because California law deprives Newdow of the right to sue as next friend, [124 S.Ct. 2304] he lacks prudential standing to challenge the school district's policy in federal court. The standing requirement derives from the constitutional and prudential limits to the powers of an unelected, unrepresentative judiciary. E.g., Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 82 L.Ed.2d 556. The Court's prudential standing jurisprudence encompasses, inter alia, "the general prohibition on a litigant's raising another person's legal rights," e.g., id., at 751, 104 S.Ct. 3315, and the Court generally declines to intervene in domestic relations, a traditional subject of state law, e.g.,

In re Burrus, 136 U.S. 586, 593-594, 10 S.Ct. 850, 34 L.Ed. 500. The extent of the standing problem raised by the domestic relations issues in this case was not apparent until Banning filed her motion to intervene or dismiss, declaring that the family court order gave her "sole legal custody" and authorized her to "exercise legal control" over her daughter. Newdow's argument that he nevertheless retains an unrestricted right to inculcate in his daughter his beliefs fails because his rights cannot be viewed in isolation. This case also concerns Banning's rights under the custody orders and, most important, their daughter's interests upon finding herself at the center of a highly public debate. Newdow's standing derives entirely from his relationship with his daughter, but he lacks the right to litigate as her next friend. Their interests are not parallel and, indeed, are potentially in conflict. Newdow's parental status is defined by state law, and this Court customarily defers to the state-law interpretations of the regional federal court, see Bishop v. Wood, 426 U.S. 341, 346-347, 96 S.Ct. 2074, 48 L.Ed.2d 684. Here, the Ninth Circuit relied on intermediate state appellate cases recognizing the right of each parent, whether custodial or noncustodial, to impart to the child his or her religious perspective. Nothing that either Banning or the school board has done, however, impairs Newdow's right to instruct his daughter in his religious views. Instead, he requests the more ambitious relief of forestalling his daughter's exposure to religious ideas endorsed by her mother, who wields a form of veto power, and to use his parental status to challenge the influences to which his daughter may be exposed in school when he and Banning disagree. The California cases simply do not stand for the proposition that Newdow has a right to reach outside the private parent-child sphere to dictate to others what they may and may not say to his child respecting religion. A next friend surely could exercise such a right, but the family court's order has deprived Newdow of that status. Pp. 2308-2312.

328 F.3d 466, reversed.

STEVENS, J., delivered the opinion of the Court, in which KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined. REHNQUIST, C.J., filed an opinion concurring in the judgment, in which O'CONNOR, J., joined, and in which THOMAS, J., joined as to Part I, post, p. 2312. O'CONNOR, J., post, p. 2321, and THOMAS, J., post, p. 2327, filed opinions concurring in the judgment. SCALIA, J., took no part in the consideration or decision of the case.

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Terence J. Cassidy, Sacramento, CA, for petitioners.

Theodore B. Olson, Washington, D.C., for United States as respondent supporting the petitioners.

Michael A. Newdow, pro se, by special leave of the Court, Sacramento, CA, for respondent.

Terence J. Cassidy, Counsel of Record, Michael W. Pott, Porter, Scott, Weiberg & Delehant, Sacramento, CA, for Petitioners.

[124 S.Ct. 2305] Theodore B. Olson, Solicitor General, Counsel of Record, Department of Justice, Washington, D.C., for the United States as Respondent Supporting Petitioners.

Michael Newdow, in pro per, Sacramento, CA, Respondent's Brief on the Merits.


STEVENS, Justice.

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Each day elementary school teachers in the Elk Grove Unified School District (School District) lead their classes in

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a group recitation of the Pledge of Allegiance. Respondent, Michael A. Newdow, is an atheist whose daughter participates in that daily exercise. Because the Pledge contains the words "under God," he views the School District's policy as a religious indoctrination of his child that violates the First Amendment. A divided panel of the Court of Appeals for the Ninth Circuit agreed with Newdow. In light of the obvious importance of that decision, we granted certiorari to review the First Amendment issue and, preliminarily, the question whether Newdow has standing to invoke the jurisdiction of the federal courts. We conclude that Newdow lacks standing and therefore reverse the Court of Appeals' decision.

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"The very purpose of a national flag is to serve as a symbol of our country," Texas v. Johnson, 491 U.S. 397, 405, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989), and of its proud traditions "of freedom, of equal opportunity, of religious tolerance, and of good will for other peoples who share our aspirations," id., at 437, 109 S.Ct. 2533 (STEVENS, J., dissenting). As its history illustrates, the Pledge of Allegiance evolved as a common public acknowledgment of the ideals that our flag symbolizes. Its recitation is a patriotic exercise designed to foster national unity and pride in those principles.

The Pledge of Allegiance was initially conceived more than a century ago. As part of the nationwide interest in commemorating the 400th anniversary of Christopher Columbus' discovery of America, a widely circulated national magazine for youth proposed in 1892 that pupils recite the following affirmation: "I pledge allegiance to my Flag and the Republic for which it stands: one Nation indivisible, with Liberty and Justice for all." [1] In the 1920's, the National Flag Conferences replaced the phrase "my Flag" with "the flag of the United States of America."

In 1942, in the midst of World War II, Congress adopted, and the President signed, a Joint Resolution codifying a detailed set of "rules and customs pertaining to the display and use of the flag of the United States of America." Ch. 435, 56 Stat. 377. Section 7 of this codification provided in full:

"That the pledge of allegiance to the flag, 'I pledge allegiance to the flag of the United States of America and to the Republic for which it stands, one Nation indivisible, with liberty and justice for [124 S.Ct. 2306] all', be rendered by

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standing with the right hand over the heart; extending the right hand, palm upward, toward the flag at the words 'to the flag' and holding this position until the end, when the hand drops to the side. However, civilians will always show full respect to the flag when the pledge is given by merely standing at attention, men removing the headdress. Persons in uniform shall render the military salute." Id., at 380.

This resolution, which marked the first appearance of the Pledge of Allegiance in positive law, confirmed the importance of the flag as a symbol of our Nation's indivisibility and commitment to the concept of liberty.

Congress revisited the Pledge of Allegiance 12 years later when it amended the text to add the words "under God." Act of June 14, 1954, ch. 297, 68 Stat. 249. The House Report that accompanied the legislation observed that, "[f]rom the time of our earliest history our peoples and our institutions have reflected the traditional concept that our Nation was founded on a fundamental belief in God." H.R.Rep. No. 1693, 83d Cong., 2d Sess., 2 (1954). The resulting text is the Pledge as we know it today: "I pledge allegiance to the Flag of the United States of America, and to the Republic for which it stands, one Nation under God, indivisible, with liberty and...

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