The parent of an elementary school student filed suit in March 2000 against local and national defendants arguing that the words “under God” in the Pledge of Allegiance are unconstitutional. The lower court rejected his complaint, but a divided panel of the Ninth Circuit held in June 2002 that the words, and their use in the public school context, were unconstitutional.
Several months later, the same Ninth Circuit panel upheld Newdow’s standing to maintain his lawsuit despite the fact that he did not have legal custody of his school-age daughter. Shortly thereafter, in February 2003, the Circuit denied en banc rehearing, but the panel narrowed its decision to apply only in the school context and declined to reach Newdow’s challenge to the 1954 federal statute that added the words “under God” to the Pledge.
The United States and the Elk Grove School District asked the U.S. Supreme Court to take the case and to find that Newdow lacked standing to pursue his claim or, alternatively, to reverse the Ninth Circuit’s decision on the merits. Newdow also filed a petition for certiorari, asking the Court to affirm the decision below and to address the constitutionality of the federal statute. In June and July 2003, we filed amicus briefs opposing all of these petitions. Nonetheless, on October 13, 2003, the Court granted the School District’s petition, taking certiorari on the standing question and on the issue of whether the words “under God” can be included in the Pledge in the public schools.
We filed an amicus brief in support of the Ninth Circuit’s decision on February 13, 2004. We argued that the Court’s longstanding Establishment Clause jurisprudence in the public school context requires an affirmance of the Ninth Circuit’s ruling. Oral argument was held in the case on March 24, 2004.
On June 14, 2004, the Supreme Court ruled 5-3 that Newdow lacked prudential standing to pursue his claim because his claim was inextricably intertwined with a family law matter. Justices Rehnquist, O’Connor and Thomas issued dissenting opinions, arguing among other things that Newdow had standing and that his claim failed on the merits because recitation of the Pledge is not coercive, is nonsectarian, and acknowledges the religious aspects of our history without advancing or endorsing religion. Newdow filed a request for reconsideration, but it was promptly denied.