Elk Grove Unified School District v. Newdow et al.

By: Kathlene

Statement of Facts

On June 14, 1954 , at the peak of the Cold War, Congress amended the text of Pledge of Allegiance by adding the words “under God” in order to “acknowledge the dependence of our people and our Government upon the moral directions of the Creator.” Including the phrase would “deny the atheistic and materialistic concepts of communism.” At the time, Congress stated that it was not “an act establishing a religion or one interring with the ‘free exercise’ of religion.”

California law says that “appropriate patriotic exercises are required to be conducted in every public elementary school each day during the school year, and the recitation of the Pledge satisfies this requirement.” The Elk Grove Unified School District (the petitioners) says that “elementary school teachers begin each school day be leading their students in reciting the Pledge.”

On March 8, 2000 , Michael Newdow (the respondent) filed a suit on his own behalf in the United States District Court for the Eastern District of California. The suit alleged that Congress violated the Establishment Clause when it altered the Pledge of Allegiance in 1954. On July 21, 2000 , the United States District Court for the Eastern District of California held that “the school district’s policy does not violate the First Amendment.” On June 26, 2002, a divided three-judge panel of the Ninth Circuit Court of Appeals ruled that the phrase “under God” in the Pledge of Allegiance violates the Establishment Clause of the First Amendment, and that the district’s practice of teacher-led recitation of the Pledge with the phrase “under God” violates the Establishment Clause. The school district filed a petition for rehearing and suggestion for rehearing en banc (in front of the full court, meaning all the judges of the Ninth Circuit), but on February 28, 2003, the Ninth Circuit denied the school district’s petition for rehearing by the full Ninth Circuit (6 of the 24 judges dissented to the denial for rehearing). Also on February 28, 2003, the original panel issued an amended opinion retreated slightly from its decision of “under God” being unconstitutional but reaffirmed that a public school district’s policy of requiring teachers to lead willing students in reciting the Pledge of Allegiance is unconstitutional.

On October 14, 2003 , the United States Supreme Court accepted review of the case. The oral argument took place on March 24, 2004 , and it addressed both the constitutional issue as well as the standing issue since Newdow is a non-custodial parent. The final decision is yet to be released.

Constitutional Question Presented

(1)    Does Michael Newdow have standing to challenge the public school district policy, of requiring teachers to lead willing students in reciting the Pledge of Allegiance, as unconstitutional?

(2)    If that is the case, then does the phrase “under God” in the Pledge of Allegiance violate the Establishment Clause under the First Amendment? 

Argument

Regarding the standing issue, Newdow had joint-custody will he filled the suit.

Like in West Virginia State Board of Education v. Barnette (1943), the Establishment Clause is violated because “his daughter is compelled to watch and listen as her state-employed teacher in a public school leads the class in a ritual that proclaims to be ‘one nation under God’”. Newdow says that his daughter “is made to feel like an outsider when she refrains from saying it, and she is indoctrinated with the belief that there is a God, and that real Americans believe that there is a God.”

The purpose of “one nation under God” is religious; thus violates all doctrinal test, like the Lemon, endorsement, and coercion test, as well as, the new neutrality concept. The Lemon test = determines whether the Establishment Clause has been violates through a three-prong test where the conduct or policy:  (1) must have a secular purpose, (2) must have a principle or primary effect that neither advances or inhibits religion, and (3) must not foster an excessive entanglement with religion. The purpose of putting the phrase “under God” into the Pledge was plainly religious, and we cannot be blind to that. The endorsement test = determines whether the government is endorsing or disapproving of religion. The statement “one nation under God” is an endorsement of religion because “it is a profession of a religious belief, namely a belief in monotheism” (the belief in the existence of God). The insertion of the phrase “under God” into the Pledge violates the endorsement test because of its root (Knights of Columbus) and support history with religious references (Congressional Record statements, the ceremony celebration, and statement by President Eisenhower):  “the text, legislative history, and implementation of the 1954 amendment ‘demonstrates an unquestionable violation of the endorsement test.’” The coercion test = determines whether government is coercing anyone to support or participate in religion or its exercise, or otherwise act in a way which establishes a state religion or religious faith, or trends to do so. It fails the coercion test because “the district’s Pledge policy places students in the untenable position of having to choose between participating in an exercise with religious content or protesting”. Newdow argues “the coercion here—with younger, more impressionable children being encouraged by government-employed teachers to actively recite religious dogma more than 2000 times—is vastly greater.” Neutrality = principle in which the ruling must be neutral involving church and state relationships. Just with government inserting the phrase “under God” into the Pledge of Allegiance, “it took one side in the quintessential religious question, ‘Does God exit?’ [and] That alone violates the neutrality [deemed by the Court].”

Precedent cases support the Court has decided lead to the conclusion that it is unconstitutional. In Wallace v. Jaffree (1985), the Court supported that the Establishment Clause demand neutrality towards religion. In Texas Monthly, Inc. v. Bullock (1989), the Court stated that the state might not convey a message of endorsement. In County of Allegheny v. ACLU (1989), the Court held that displaying a crèche on public property because “it would make nonbelievers feel like ‘outsiders’.” In Lee v. Weisman (1992), the Court found that a graduation prayer was “unduly coercive”. In cases like these, “the dissenting justices have noted that the Court’s logic leads to the conclusion that the Pledge is also unconstitutional.”

Conclusion

The Court should not follow into the path “taken in the legislative prayer case and disregard or finesse its prior doctrinal approaches, [and] focus instead upon the religious history and character of the nation and the patriotic nature of the Pledge, and hold that [it] is simply not a religious exercise.” Nor should the Court “focus upon the primary purpose of the Establishment Clause” (to protect the independence of the state from undue religious influence and protect religious from interference by the state), thus making the Pledge seemed not “as a threat to the independence of the state from religious influence or control, or as a threat to the independence of churches due to state influence”. The Court should instead look at precedent cases—like Wallace v. Jaffree (1985), Texas Monthly, Inc. v. Bullock (1989), County of Allegheny v. ACLU (1989), and Lee v. Weisman (1992)—where the Court’s logic would lead to the conclusion that the Pledge is unconstitutional. “The Pledge violates all of the Court’s numerous test in this area.” The Court should not allow for this to occur.

Work Cited

OYEZ:  Supreme Court Multimedia.  “Elk Grove Unified School v. Newdow”.  <http://www.oyez.org/oyez/resource/case/1682/>.

Scharrffs, Brett G.  Preview of United States Supreme Court Cases. “Is the Pledge of Alliance an Unconstitutional Establishment of Religion?”  Issue No. 6, March 12, 2004.  ABA.

On the Docket:  Medill School of Journalism.  “Elk Grove Unified School District v. Newdow, Michael, et al.”  <http://journalism.medill.northwestern.edu/docket/action.lasso?-database=docket&-

layout=lasso&-response=%2fdocket%2fdetail.srch&-recordID=33207&-search>.