Newdow v. US Congress
292 F.3d 597 (2002)
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Rule of Law:
The inclusion of the words 'under God' in the Pledge of Allegiance and a public school district’s policy of teacher-led recitation of the Pledge violate the Establishment Clause of the First Amendment because they constitute a government endorsement of religion and coerce students to participate in a religious exercise.
Facts:
- Michael Newdow is an atheist whose daughter attends public elementary school in the Elk Grove Unified School District (EGUSD) in California.
- California state law requires public schools to begin each day with 'appropriate patriotic exercises,' which can be satisfied by the Pledge of Allegiance.
- The EGUSD implemented a policy requiring each elementary school class to recite the Pledge once each day.
- The Pledge of Allegiance was originally codified in 1942 without any reference to God.
- In 1954, Congress amended the Pledge of Allegiance by adding the words 'under God' after the word 'Nation'.
- Newdow's daughter's classmates are led by their teacher in reciting the Pledge, including the phrase 'one nation under God'.
- Newdow does not allege his daughter is compelled to physically participate, but claims she is injured by being compelled to 'watch and listen' as her teacher leads classmates in a ritual proclaiming there is a God.
Procedural Posture:
- Michael Newdow filed a complaint in the United States District Court challenging the constitutionality of the 1954 Act, the California statute, and the EGUSD's policy requiring teacher-led Pledge recitation.
- The school district defendants (EGUSD and its superintendents) filed a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss for failure to state a claim.
- The federal defendants (United States Congress, United States, and the President) joined the school district defendants' motion to dismiss.
- A Magistrate Judge reported findings and a recommendation to the District Court.
- District Judge Edward J. Schwartz approved the recommendation and entered a judgment dismissing Newdow's complaint.
- Newdow (appellant) appealed the judgment of dismissal to the United States Court of Appeals for the Ninth Circuit (appellee includes the U.S. Congress, United States, President, EGUSD, and its superintendents).
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Issue:
Does the inclusion of the words 'under God' in the Pledge of Allegiance, and a public school district's policy of teacher-led recitation of the Pledge, violate the Establishment Clause of the First Amendment?
Opinions:
Majority - Goodwin, Circuit Judge
Yes, the 1954 Act adding the words 'under God' to the Pledge and the EGUSD’s policy of teacher-led recitation of the Pledge violate the Establishment Clause. The court first established Newdow's standing, noting that as a parent, he has the right to direct his daughter's religious upbringing and that the mere enactment of the 1954 Act, with its legislative history demonstrating an intent for daily classroom recitation, caused a sufficient 'injury in fact' by interfering with this right, similar to the injuries recognized in Wallace v. Jaffree and Santa Fe Indep. School Dist. v. Doe. The court then applied three Establishment Clause tests: the 'endorsement' test, the 'coercion' test, and the 'Lemon' test. Under the endorsement test, the phrase 'one nation under God' is an impermissible government endorsement of religion, specifically monotheism, as it is normative rather than descriptive and sends a message to non-believers that they are 'outsiders.' Under the coercion test, the policy places impressionable schoolchildren in the untenable position of choosing between participating in a religious exercise or protesting, a coercive effect made clear by the Act's legislative intent for daily recitation. Finally, under the Lemon test's purpose prong, the 1954 Act's 'sole purpose' was to advance religion by differentiating the U.S. from atheistic communism, which is unconstitutional as it endorses religion over atheism. The school district policy, though having a secular purpose, failed the 'effects' prong of the Lemon test because it is highly likely to be perceived as an endorsement of monotheistic belief by adherents and a disapproval by non-adherents within the classroom setting.
Concurring-in-part-and-dissenting-in-part - Fernandez, Circuit Judge
No, the inclusion of the phrase 'under God' in the Pledge of Allegiance does not violate the religion clauses of the Constitution. Judge Fernandez concurred with the majority on jurisdiction and standing (though expressing serious misgivings about Newdow’s standing to attack the federal statute itself) but dissented on the Establishment Clause issue. He argued that the religion clauses primarily demand government neutrality and non-discrimination, rather than driving religious expression out of public thought. He asserted that the danger posed by the phrase 'under God' to establish a theocracy or suppress beliefs is 'de minimis' and 'picayune,' considering it a form of 'ceremonial deism' that has not caused any real harm throughout history. He contended that the Constitution is a 'practical and balanced charter' and not merely a 'feel-good prescription,' and that while Barnette protected children from compelled recitation, it did not prohibit the Pledge from being recited in their presence. He concluded that judges should respect Supreme Court dicta that such phrases are consistent with the Establishment Clause, and that removing such expressions would diminish a 'healthy glow' for many citizens without preventing a constitutional violation.
Analysis:
This case marked a significant and controversial interpretation of the Establishment Clause, challenging the long-standing practice of including 'under God' in the Pledge of Allegiance. By rigorously applying the Lemon, endorsement, and coercion tests, the Ninth Circuit highlighted the evolving understanding of government neutrality towards religion, particularly in public education. The decision underscored that even seemingly ceremonial religious references can violate constitutional prohibitions if they are perceived as endorsements or create a coercive environment for non-believers. Although this specific ruling was later reversed by the Supreme Court on procedural standing grounds (not on the merits), it spurred a national debate on the appropriate role of religious expression in public life and continues to be cited in discussions about the separation of church and state.
