Abstract from ContExploration.net
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abstracts document nr |
8001 |
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http://contexploration.net/abstracts/8001.htm |
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http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&navby=case&vol=000&invol=02-1624 |
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title |
ELK
GROVE UNIFIED SCHOOL DISTRICT et al. v. NEWDOW et al. |
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date published |
2004-06-14 |
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author |
United States Supreme
Court |
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FindLaw.com |
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further reading from
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Counsel
of Record
For Petitioner Elk Grove Unified School Dist.:
Terence J. Cassidy
Porter, Scott,
Weiberg & Delehant
Sacramento, CA
For Respondent Newdow:
Michael A. Newdow, Pro Se
Sacramento, CA
For the United States:
Theodore Olson
Solicitor General of the United States
Washington, DC
Jump to: [Opinion] [Concurrence 1] [Concurrence 2] [Concurrence 3]
ELK
GROVE UNIFIED SCHOOL DISTRICT et al. v. NEWDOW et al.
certiorari to the united
states court of appeals for the ninth circuit
No. 02-1624. Argued March 24, 2004--Decided June 14,
2004
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 her
mother's, as well as the right to seek redress for an alleged injury to his own
parental interests.
Held: Because
California law deprives Newdow of the right to sue as next friend, 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. 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, 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. 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. 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. 7-14.
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. O'Connor, J., and Thomas,
J., filed opinions concurring in the judgment. Scalia, J., took
no part in the consideration or decision of the case.
ELK GROVE UNIFIED SCHOOL DISTRICT and
DAVID
W. GORDON, SUPERINTENDENT, PETITIONERS
v. MICHAEL A. NEWDOW et al.
on writ of certiorari to the united states court of appeals for the
ninth circuit
[June 14, 2004]
Justice Stevens
delivered the opinion of the Court.
Each day elementary
school teachers in the Elk Grove Unified School District (School District) lead
their classes in 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.
I
"The very purpose
of a national flag is to serve as a symbol of our country," Texas
v. Johnson, 491 U. S. 397,
405 (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 (Stevens,
J., dissenting). As its history illustrates, the Pledge of Allegiance evolved
as a common public acknowledgement 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." Chapter 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 all', be rendered by 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., p. 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 justice for
all." 4 U. S. C. §4.
II
Under California law,
"every public elementary school" must begin each day with
"appropriate patriotic exercises." Cal. Educ. Code Ann. §52720 (West
1989). The statute provides that "[t]he giving of the Pledge of Allegiance
to the Flag of the United States of America shall satisfy" this
requirement. Ibid. The Elk Grove Unified School District has
implemented the state law by requiring that "[e]ach elementary school
class recite the pledge of allegiance to the flag once each day."2 Consistent with our case law, the School District permits students who
object on religious grounds to abstain from the recitation. See West
Virginia Bd. of Ed. v. Barnette, 319 U. S. 624 (1943).
In March 2000, Newdow
filed suit in the United States District Court for the Eastern District of
California against the United States Congress, the President of the United
States, the State of California, and the Elk Grove Unified School District and
its superintendent.3 App. 24. At the time of filing, Newdow's daughter was enrolled in
kindergarten in the Elk Grove Unified School District and participated in the daily
recitation of the Pledge. Styled as a mandamus action, the complaint explains
that Newdow is an atheist who was ordained more than 20 years ago in a ministry
that "espouses the religious philosophy that the true and eternal bonds of
righteousness and virtue stem from reason rather than mythology." Id.,
at 42, ¶ ; 53. The complaint seeks a declaration that the 1954 Act's
addition of the words "under God" violated the Establishment and Free
Exercise Clauses of the United States Constitution,4 as well as an injunction against the School District's policy requiring
daily recitation of the Pledge. Id., at 42. It alleges that Newdow has
standing to sue on his own behalf and on behalf of his daughter as "next
friend." Id., at 26, 56.
The case was referred to
a Magistrate Judge, whose brief findings and recommendation concluded,
"the Pledge does not violate the Establishment Clause." Id.,
at 79. The District Court adopted that recommendation and dismissed the
complaint on July 21, 2000. App. to Pet. for Cert. 97. The Court of Appeals
reversed and issued three separate decisions discussing the merits and Newdow's
standing.
In its first opinion the
appeals court unanimously held that Newdow has standing "as a parent to
challenge a practice that interferes with his right to direct the religious
education of his daughter." Newdow v. U. S. Congress,
292 F. 3d 597, 602 (CA9 2002) (Newdow I). That holding sustained
Newdow's standing to challenge not only the policy of the School District,
where his daughter still is enrolled, but also the 1954 Act of Congress that
had amended the Pledge, because his " 'injury in fact' "
was " 'fairly traceable' " to its enactment. Id.,
at 603-605. On the merits, over the dissent of one judge, the court held that
both the 1954 Act and the School District's policy violate the Establishment
Clause of the First Amendment. Id., at 612.
After the Court of
Appeals' initial opinion was announced, Sandra Banning, the mother of Newdow's
daughter, filed a motion for leave to intervene, or alternatively to dismiss
the complaint. App. 82. She declared that although she and Newdow shared
"physical custody" of their daughter, a state-court order granted her
"exclusive legal custody" of the child, "including the sole
right to represent [the daughter's] legal interests and make all decision[s]
about her education" and welfare. Id., at 82, ¶ ;¶ ; 2-3.
Banning further stated that her daughter is a Christian who believes in God and
has no objection either to reciting or hearing others recite the Pledge of
Allegiance, or to its reference to God. Id., at 83, ¶ ; 4.
Banning expressed the belief that her daughter would be harmed if the
litigation were permitted to proceed, because others might incorrectly perceive
the child as sharing her father's atheist views. Id., at 85, ¶
; 10. Banning accordingly concluded, as her daughter's sole legal
custodian, that it was not in the child's interest to be a party to Newdow's
lawsuit. Id., at 86. On September 25, 2002, the California Superior
Court entered an order enjoining Newdow from including his daughter as an
unnamed party or suing as her "next friend." That order did not
purport to answer the question of Newdow's Article III standing. See Newdow
v. U. S. Congress, 313 F. 3d 500, 502 (CA9 2002) (Newdow
II).
In a second published
opinion, the Court of Appeals reconsidered Newdow's standing in light of
Banning's motion. The court noted that Newdow no longer claimed to represent
his daughter, but unanimously concluded that "the grant of sole legal
custody to Banning" did not deprive Newdow, "as a noncustodial
parent, of Article III standing to object to unconstitutional government action
affecting his child." Id., at 502-503. The court held that under
California law Newdow retains the right to expose his child to his particular
religious views even if those views contradict the mother's, and that Banning's
objections as sole legal custodian do not defeat Newdow's right to seek redress
for an alleged injury to his own parental interests. Id., at 504-505.
On February 28, 2003,
the Court of Appeals issued an order amending its first opinion and denying
rehearing en banc. Newdow v. U. S. Congress, 328
F. 3d 466, 468 (CA9 2003) (Newdow III). The amended
opinion omitted the initial opinion's discussion of Newdow's standing to
challenge the 1954 Act and declined to determine whether Newdow was entitled to
declaratory relief regarding the constitutionality of that Act. Id.,
at 490. Nine judges dissented from the denial of en banc review. Id.,
at 471, 482. We granted the School District's petition for a writ of certiorari
to consider two questions: (1) whether Newdow has standing as a noncustodial parent
to challenge the School District's policy, and (2) if so, whether the policy
offends the First Amendment. 540 U. S. 945 (2003).
III
In every federal case,
the party bringing the suit must establish standing to prosecute the action.
"In essence the question of standing is whether the litigant is entitled
to have the court decide the merits of the dispute or of particular
issues." Warth v. Seldin, 422 U. S. 490,
498 (1975). The standing requirement is born
partly of " 'an idea, which is more than an intuition but less than a
rigorous and explicit theory, about the constitutional and prudential limits to
the powers of an unelected, unrepresentative judiciary in our kind of
government.' " Allen v. Wright,
468 U. S. 737,
750 (1984) (quoting Vander Jagt v. O'Neill,
699 F. 2d 1166, 1178-1179 (CADC 1983) (Bork, J.,
concurring)).
The command to guard
jealously and exercise rarely our power to make constitutional pronouncements
requires strictest adherence when matters of great national significance are at
stake. Even in cases concededly within our jurisdiction under Article III, we
abide by "a series of rules under which [we have] avoided passing upon a
large part of all the constitutional questions pressed upon [us] for
decision." Ashwander v. TVA, 297 U. S. 288,
346 (1936) (Brandeis, J., concurring). Always we
must balance "the heavy obligation to exercise jurisdiction," Colorado
River Water Conservation Dist. v. United States, 424 U. S. 800,
820 (1976), against the "deeply rooted"
commitment "not to pass on questions of constitutionality" unless
adjudication of the constitutional issue is necessary, Spector Motor
Service, Inc. v. McLaughlin, 323 U. S. 101,
105 (1944). See also Rescue Army v. Municipal
Court of Los Angeles, 331 U. S. 549,
568-575 (1947).
Consistent with these
principles, our standing jurisprudence contains two strands: Article III
standing, which enforces the Constitution's case or controversy requirement,
see Lujan v. Defenders of Wildlife, 504 U. S. 555,
559-562 (1992); and prudential standing, which
embodies "judicially self-imposed limits on the exercise of federal
jurisdiction," Allen, 468 U. S., at
751. The Article III limitations are familiar: The
plaintiff must show that the conduct of which he complains has caused him to
suffer an "injury in fact" that a favorable judgment will redress.
See Lujan, 504 U. S., at
560-561. Although we have not exhaustively defined
the prudential dimensions of the standing doctrine, we have explained that prudential
standing encompasses "the general prohibition on a litigant's raising
another person's legal rights, the rule barring adjudication of generalized
grievances more appropriately addressed in the representative branches, and the
requirement that a plaintiff's complaint fall within the zone of interests
protected by the law invoked." Allen, 468 U. S., at
751. See also Secretary of State of Md.
v. Joseph H. Munson Co., 467 U. S. 947,
955-956 (1984). "Without such
limitations--closely related to Art. III concerns but essentially matters
of judicial self-governance--the courts would be called upon to decide abstract
questions of wide public significance even though other governmental
institutions may be more competent to address the questions and even though judicial
intervention may be unnecessary to protect individual rights." Warth,
422 U. S., at
500.
One of the principal
areas in which this Court has customarily declined to intervene is the realm of
domestic relations. Long ago we observed that "[t]he whole subject of the
domestic relations of husband and wife, parent and child, belongs to the laws
of the States and not to the laws of the United States." In re Burrus,
136 U. S. 586, 593- 594 (1890). See also Mansell v. Mansell, 490 U. S. 581,
587 (1989) ("[D]omestic relations are
preeminently matters of state law"); Moore v. Sims, 442 U. S. 415,
435 (1979) ("Family relations are a
traditional area of state concern"). So strong is our deference to state
law in this area that we have recognized a "domestic relations
exception" that "divests the federal courts of power to issue
divorce, alimony, and child custody decrees." Ankenbrandt v. Richards,
504 U. S. 689,
703 (1992). We have also acknowledged that it
might be appropriate for the federal courts to decline to hear a case involving
"elements of the domestic relationship," id., at 705, even
when divorce, alimony, or child custody is not strictly at issue:
"This
would be so when a case presents 'difficult questions of state law bearing on
policy problems of substantial public import whose importance transcends the
result in the case then at bar.' Such might well be the case if a federal suit
were filed prior to effectuation of a divorce, alimony, or child custody
decree, and the suit depended on a determination of the status of the
parties." Id., at 705-706 (quoting Colorado River, 424 U. S., at
814).
Thus, while rare instances arise in which it is
necessary to answer a substantial federal question that transcends or exists
apart from the family law issue, see, e.g., Palmore v. Sidoti,
466 U. S. 429,
432-434 (1984), in general it is appropriate for the federal
courts to leave delicate issues of domestic relations to the state courts.5
As explained briefly
above, the extent of the standing problem raised by the domestic relations
issues in this case was not apparent until August 5, 2002, when Banning filed
her motion for leave to intervene or dismiss the complaint following the Court
of Appeals' initial decision. At that time, the child's custody was governed by
a February 6, 2002, order of the California Superior Court. That order provided
that Banning had " 'sole legal custody as to the rights and
responsibilities to make decisions relating to the health, education and
welfare of' " her daughter. Newdow II, 313 F. 3d, at
502. The order stated that the two parents should " 'consult with one
another on substantial decisions relating to' " the child's
" 'psychological and educational needs,' " but it
authorized Banning to " 'exercise legal control' " if the
parents could not reach " 'mutual agreement.' " Ibid.
That family court order
was the controlling document at the time of the Court of Appeals' standing
decision. After the Court of Appeals ruled, however, the Superior Court held
another conference regarding the child's custody. At a hearing on September 11,
2003, the Superior Court announced that the parents have "joint legal
custody," but that Banning "makes the final decisions if the two ...
disagree." App. 127-128.6
Newdow contends that
despite Banning's final authority, he retains "an unrestricted right to
inculcate in his daughter--free from governmental interference--the atheistic
beliefs he finds persuasive." Id., at 48, ¶ ; 78. The
difficulty with that argument is that Newdow's rights, as in many cases
touching upon family relations, cannot be viewed in isolation. This case
concerns not merely Newdow's interest in inculcating his child with his views
on religion, but also the rights of the child's mother as a parent generally
and under the Superior Court orders specifically. And most important, it
implicates the interests of a young child who finds herself at the center of a
highly public debate over her custody, the propriety of
a widespread national ritual, and the meaning of our Constitution.
The interests of the
affected persons in this case are in many respects antagonistic. Of course,
legal disharmony in family relations is not uncommon, and in many instances
that disharmony poses no bar to federal-court adjudication of proper federal
questions. What makes this case different is that Newdow's standing derives
entirely from his relationship with his daughter, but he lacks the right to
litigate as her next friend. In marked contrast to our case law on jus
tertii, see, e.g., Singleton v. Wulff, 428 U. S. 106,
113-118 (1976) (plurality opinion), the interests of this
parent and this child are not parallel and, indeed, are potentially in
conflict.7
Newdow's parental status
is defined by California's domestic relations law. Our custom on questions of
state law ordinarily is to defer to the interpretation of the Court of Appeals
for the Circuit in which the State is located. See Bishop v. Wood,
426 U. S. 341,
346-347 (1976). In this case, the Court of Appeals,
which possesses greater familiarity with California law, concluded that state
law vests in Newdow a cognizable right to influence his daughter's religious
upbringing. Newdow II, 313 F. 3d, at 504-505. The court based its
ruling on two intermediate state appellate cases holding that "while the
custodial parent undoubtedly has the right to make ultimate decisions
concerning the child's religious upbringing, a court will not enjoin the
noncustodial parent from discussing religion with the child or involving the
child in his or her religious activities in the absence of a showing that the
child will be thereby harmed." In re Marriage of Murga, 103
Cal. App. 3d 498, 505, 163 Cal. Rptr. 79, 82 (1980). See also In re
Marriage of Mentry, 142 Cal. App. 3d 260, 268-270, 190 Cal. Rptr. 843,
849-850 (1983) (relying on Murga to invalidate portion of restraining
order barring noncustodial father from engaging children in religious activity
or discussion without custodial parent's consent). Animated by a conception of
"family privacy" that includes "not simply a policy of minimum
state intervention but also a presumption of parental autonomy," 142 Cal.
App. 3d, at 267-268, 190 Cal. Rptr., at 848, the state cases create a zone of
private authority within which each parent, whether custodial or noncustodial,
remains free 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, Newdow requests relief
that is more ambitious than that sought in Mentry and Murga.
He wishes to forestall his daughter's exposure to religious ideas that her mother,
who wields a form of veto power, endorses, 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 dictate to others what they may and may
not say to his child respecting religion. Mentry and Murga
are concerned with protecting " 'the fragile, complex interpersonal
bonds between child and parent,' " 142 Cal. App. 3d, at 267, 190 Cal.
Rptr., at 848, and with permitting divorced parents to expose their children to
the " 'diversity of religious experiences [that] is itself a sound
stimulant for a child,' " id., at 265, 190 Cal. Rptr., at
847 (citation omitted). The cases speak not at all to the problem of a parent
seeking to reach outside the private parent-child sphere to restrain the acts
of a third party. A next friend surely could exercise such a right, but the
Superior Court's order has deprived Newdow of that status.
In our view, it is
improper for the federal courts to entertain a claim by a plaintiff whose
standing to sue is founded on family law rights that are in dispute when
prosecution of the lawsuit may have an adverse effect on the person who is the
source of the plaintiff's claimed standing. 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. There is a vast difference between Newdow's right
to communicate with his child--which both California law and the First
Amendment recognize--and his claimed right to shield his daughter from
influences to which she is exposed in school despite the terms of the custody order.
We conclude that, having been deprived under California law of the right to sue
as next friend, Newdow lacks prudential standing to bring this suit in federal
court.8
The judgment of the
Court of Appeals is reversed.
It is so ordered.
Justice Scalia
took no part in the consideration or decision of this case.
ELK GROVE UNIFIED SCHOOL DISTRICT and
DAVID
W. GORDON, SUPERINTENDENT, PETITIONERS
v. MICHAEL A. NEWDOW et al.
on writ of certiorari to the united states court of appeals for the
ninth circuit
[June 14, 2004]
Chief Justice
Rehnquist, with whom Justice O'Connor joins, and with whom Justice
Thomas joins as to Part I, concurring in the judgment.
The Court today erects a
novel prudential standing principle in order to avoid reaching the merits of
the constitutional claim. I dissent from that ruling. On the merits, I conclude
that the Elk Grove Unified School District (School District) policy that requires
teachers to lead willing students in reciting the Pledge of Allegiance, which
includes the words "under God," does not violate the Establishment
Clause of the First Amendment.
I
The Court correctly
notes that "our standing jurisprudence contains two strands: Article III
standing, which enforces the Constitution's case or controversy requirement,
see Lujan v. Defenders of Wildlife, 504 U. S. 555,
559-562 (1992); and prudential standing, which
embodies 'judicially self-imposed limits on the exercise of federal
jurisdiction, [Allen v. Wright, 468 U. S. 737,
751 (1984)].' " Ante, at 7-8.
To be clear, the Court does not dispute that respondent Newdow (hereinafter
respondent) satisfies the requisites of Article III standing. But curiously the
Court incorporates criticism of the Court of Appeals' Article III standing
decision into its justification for its novel prudential standing principle.
The Court concludes that respondent lacks prudential standing, under its new
standing principle, to bring his suit in federal court.
We have, in the past,
judicially self-imposed clear limits on the exercise of federal jurisdiction.
See, e.g., Warth v. Seldin, 422 U. S. 490,
499 (1975); Allen v. Wright, 468 U. S. 737,
751 (1984) ("Standing doctrine embraces
several judicially self-imposed limits on the exercise of federal jurisdiction,
such as the general prohibition on a litigant's raising another person's legal
rights ..."). In contrast, here is the Court's new prudential standing
principle: "[I]t is improper for the federal courts to entertain a claim
by a plaintiff whose standing to sue is founded on family law rights that are
in dispute when prosecution of the lawsuit may have an adverse effect on the
person who is the source of the plaintiff's claimed standing." Ante,
at 13. The Court loosely bases this novel prudential standing
limitation on the domestic relations exception to diversity-of-citizenship
jurisdiction pursuant to 28 U. S. C. §1332, the abstention doctrine,
and criticisms of the Court of Appeals' construction of California state law,
coupled with the prudential standing prohibition on a litigant's raising
another person's legal rights.
First, the Court relies
heavily on Ankenbrandt v. Richards, 504 U. S. 689 (1992), in which we discussed both the domestic relations exception and
the abstention doctrine. In Ankenbrandt, the mother of two children
sued her former spouse and his female companion on behalf of the children,
alleging physical and sexual abuse of the children. The lower courts declined
jurisdiction based on the domestic relations exception to diversity
jurisdiction and abstention under Younger v. Harris, 401 U. S. 37 (1971). We reversed, concluding that the domestic relations exception
only applies when a party seeks to have a district court issue a "divorce,
alimony, and child custody decree," Ankenbrandt, 504 U. S., at
704. We further held that abstention was
inappropriate because "the status of the domestic relationship ha[d] been
determined as a matter of state law, and in any event ha[d] no bearing on the
underlying torts alleged," id., at 706.
The Court first cites
the domestic relations exception to support its new principle. Then the Court
relies on a quote from Ankenbrandt's discussion of the abstention
doctrine: "We have also acknowledged that it might be appropriate for the
federal courts to decline to hear a case involving 'elements of the domestic
relationship,' id., at 705, even when divorce, alimony, or child
custody is not strictly at issue." Ante, at 9-10. The Court
perfunctorily states: "[T]hus, while rare instances arise in which it is
necessary to answer a substantial federal question that transcends or exists
apart from the family law issue, see, e.g., Palmore v. Sidoti,
466 U. S. 429,
432-434 (1984), in general it is appropriate for the federal
courts to leave delicate issues of domestic relations to the state
courts." Ante, at 9. That conclusion does not follow from Ankenbrandt's
discussion of the domestic relations exception and abstention; even if it
did, it would not be applicable in this case because, on the merits, this case
presents a substantial federal question that transcends the family law issue to
a greater extent than Palmore.
The domestic relations
exception is not a prudential limitation on our federal jurisdiction. It is a
limiting construction of the statute defining federal diversity jurisdiction,
28 U. S. C. §1332, which "divests the federal courts of power to
issue divorce, alimony, and child custody decrees," Ankenbrandt,
504 U. S., at 703. This case does not involve diversity
jurisdiction, and respondent does not ask this Court to issue a divorce,
alimony, or child custody decree. Instead it involves a substantial federal
question about the constitutionality of the School District's conducting the
pledge ceremony, which is the source of our jurisdiction. Therefore, the
domestic relations exception to diversity jurisdiction forms no basis for
denying standing to respondent.
When we discussed
abstention in Ankenbrandt, we first noted that "[a]bstention
rarely should be invoked, because the federal courts have a 'virtually
unflagging obligation ... to exercise the jurisdiction given them.' "
Id., at 705 (quoting Colorado River Water Conservation Dist.
v. United States, 424 U. S. 800,
817 (1976)). Ankenbrandt's discussion of
abstention by no means supports the proposition that only in the rare instances
where "a substantial federal question ... transcends or exists apart from
the family law issue," ante, at 9, should federal courts
decide the federal issue. As in Ankenbrandt, "the status of the
domestic relationship has been determined as a matter of state law, and in any
event has no bearing on the underlying [constitutional violation]
alleged." 504 U. S., at 706. Sandra Banning and respondent now share joint custody of their daughter,
respondent retains the right to expose his daughter to his religious views, and
the state of their domestic affairs has nothing to do with the underlying
constitutional claim. Abstention forms no basis for denying respondent
standing.
The Court cites
Palmore v. Sidoti, 466 U. S. 429 (1984), as an example of the exceptional case where a "substantial
federal question that transcends or exists apart from the family law
issue" makes the exercise of our jurisdiction appropriate. Ante, at
9. In Palmore, we granted certiorari to review a child custody
decision, and reversed the state court's decision because we found that the
effects of racial prejudice resulting from the mother's interracial marriage
could not justify granting custody to the father. Contrary to the Court's
assertion, the alleged constitutional violation, while clearly involving a
"substantial federal question," did not "transcen[d] or exis[t]
apart from the family law issue," ante, at 9; it had everything
to do with the domestic relationship--"[w]e granted certiorari to review a
judgment of a state court divesting a natural mother of the custody of her
infant child," 466 U. S., at
430 (emphasis added). Under the Court's discussion
today, it appears that we should have stayed out of the "domestic
dispute" in Palmore no matter how constitutionally offensive the
result would have been.
Finally, it seems the
Court bases its new prudential standing principle, in part, on criticisms of
the Court of Appeals' construction of state law, coupled with the prudential
principle prohibiting third-party standing. In the Court of Appeals' original
opinion, it held unanimously that respondent satisfied the Article III standing
requirements, stating respondent "has standing as a parent to challenge a
practice that interferes with his right to direct the education of his
daughter." Newdow v. United States Congress, 292
F. 3d 597, 602 (CA9 2002). After Banning moved for leave to intervene, the
Court of Appeals reexamined respondent's standing to determine whether the
parents' court-ordered custodial arrangement altered respondent's standing. Newdow
v. United States Congress, 313 F. 3d 500 (CA9 2002). The
court examined whether respondent could assert an injury in fact by asking
whether, under California law, "noncustodial parents maintain the right to
expose and educate their children to their individual religious views, even if
those religious views contradict those of the custodial parent."1 Id., at 504. The Court of Appeals again
unanimously concluded that the respondent satisfied Article III standing,
despite the custody order, because he retained sufficient parental rights under
California law. Id., at 504-505 (citing In re Marriage of Murga
v. Peterson, 103 Cal. App. 3d 498, 163 Cal. Rptr. 79 (1980); In re
Marriage of Mentry, 142 Cal. App. 3d 260, 190 Cal. Rptr. 843 (1983)).
The Court, contrary to
the Court of Appeals' interpretation of California case law, concludes that
respondent "requests relief that is more ambitious than that sought in Mentry
and Murga" because he seeks to restrain the act of a third
party outside the parent-child sphere. Ante, at 13. The Court then mischaracterizes
respondent's alleged interest based on the Court's de novo
construction of California law.
The correct
characterization of respondent's interest rests on the interpretation of state
law. As the Court recognizes, ante, at 11, we have a "settled and
firm policy of deferring to regional courts of appeals in matters that involve
the construction of state law." Bowen v. Massachusetts, 487 U. S. 879,
908 (1988). We do so "not only to render
unnecessary review of their decisions in this respect, but also to reflect our
belief that district courts and courts of appeals are better schooled in and
more able to interpret the laws of their respective States." Brockett
v. Spokane Arcades, Inc., 472 U. S. 491,
500 (1985) (internal quotation marks and citation
omitted). In contrast to the Court, I would defer to the Court of Appeals'
interpretation of California law because it is our settled policy to do so, and
because I think that the Court of Appeals has the better reading of Murga,
supra, and Mentry, supra.
The Court does not take
issue with the fact that, under California law, respondent retains a right to
influence his daughter's religious upbringing and to expose her to his views.
But it relies on Banning's view of the merits of this case to diminish
respondent's interest, stating that the respondent "wishes to forestall
his daughter's exposure to religious ideas that her mother, who wields a form
of veto power, endorses, and to use his parental status to challenge the
influences to which his daughter may be exposed in school when he and Banning
disagree." Ante, at 13. As alleged by respondent and as
recognized by the Court of Appeals, respondent wishes to enjoin the School
District from endorsing a form of religion inconsistent with his own views
because he has a right to expose his daughter to those views without the
State's placing its imprimatur on a particular religion. Under the
Court of Appeals' construction of California law, Banning's "veto
power" does not override respondent's right to challenge the pledge
ceremony.
The Court concludes that
the California cases "do not stand for the proposition that [respondent]
has a right to dictate to others what they may or may not say to his child
respecting religion." Ibid. Surely, under California case law and
the current custody order, respondent may not tell Banning what she may say to
their child respecting religion, and respondent does not seek to. Just as
surely, respondent cannot name his daughter as a party to a lawsuit against Banning's
wishes. But his claim is different: Respondent does not seek to tell just
anyone what he or she may say to his daughter, and he does not seek to
vindicate solely her rights.
Respondent asserts that
the School District's pledge ceremony infringes his right under California law
to expose his daughter to his religious views. While she is intimately
associated with the source of respondent's standing (the father-daughter
relationship and respondent's rights thereunder), the daughter is not the
source of respondent's standing; instead it is their relationship that
provides respondent his standing, which is clear once respondent's interest is
properly described.2 The Court's criticisms of the Court of Appeals' Article III standing
decision and the prudential prohibition on third-party standing provide no
basis for denying respondent
standing.
Although the Court may
have succeeded in confining this novel principle almost narrowly enough to be,
like the proverbial excursion ticket--good for this day only--our doctrine of
prudential standing should be governed by general principles, rather than
ad hoc improvisations.
II
The Pledge of Allegiance
reads:
"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 justice for all." 4 U. S. C. §4.
As part of an overall effort to "codify and
emphasize existing rules and customs pertaining to the display and use of the
flag of the United States of America," see H. R. Rep. No. 2047, 77th
Cong., 2d Sess., 1 (1942); S. Rep. No. 1477, 77th Cong., 2d Sess., 1 (1942),
Congress enacted the Pledge on June 22, 1942. Pub. L. 623, ch. 435, §7, 56
Stat. 380, former 36 U. S. C. §1972. Congress amended the Pledge to
include the phrase "under God" in 1954. Act of June 14, 1954,
ch. 297, §7, 68 Stat. 249. The amendment's sponsor, Representative Rabaut,
said its purpose was to contrast this country's belief in God with the Soviet
Union's embrace of atheism. 100 Cong. Rec. 1700 (1954). We do not know what
other Members of Congress thought about the purpose of the amendment. Following
the decision of the Court of Appeals in this case, Congress passed legislation
that made extensive findings about the historic role of religion in the
political development of the Nation and reaffirmed the text of the Pledge. Act
of Nov. 13, 2002, Pub. L. 107-293, §§1-2, 116 Stat. 2057-2060. To the millions
of people who regularly recite the Pledge, and who have no access to, or
concern with, such legislation or legislative history, "under God"
might mean several different things: that God has guided the destiny of the
United States, for example, or that the United States exists under God's
authority. How much consideration anyone gives to the phrase probably varies,
since the Pledge itself is a patriotic observance focused primarily on the flag
and the Nation, and only secondarily on the description of the Nation.
The phrase "under
God" in the Pledge seems, as a historical matter, to sum up the attitude
of the Nation's leaders, and to manifest itself in many of our public
observances. Examples of patriotic invocations of God and official
acknowledgments of religion's role in our Nation's history abound.
At George Washington's
first inauguration on April 30, 1789, he
"stepped
toward the iron rail, where he was to receive the oath of office. The
diminutive secretary of the Senate, Samuel Otis, squeezed between the President
and Chancellor Livingston and raised up the crimson cushion with a Bible on it.
Washington put his right hand on the Bible, opened to Psalm 121:1: 'I raise my
eyes toward the hills. Whence shall my help come.' The Chancellor proceeded
with the oath: 'Do you solemnly swear that you will faithfully execute the
office of President of the United States and will to the best of your ability
preserve, protect and defend the Constitution of the United States?' The
President responded, 'I solemnly swear,' and repeated the oath, adding, 'So
help me God.' He then bent forward and kissed the Bible before him." M.
Riccards, A Republic, If You Can Keep It: The Foundation of the American
Presidency, 1700-1800, pp. 73-74 (1987).
Later the same year,
after encouragement from Congress,3 Washington issued his first Thanksgiving proclamation, which began:
"Whereas
it is the duty of all Nations to acknowledge the problems of Almighty God, to
obey His will, to be grateful for his benefits, and humbly to implore his
protection and favor--and whereas both Houses of Congress have by their joint
Committee requested me 'to recommend to the People of the United States a day
of public thanksgiving and prayer to be observed by acknowledging with grateful
hearts the many signal favors of Almighty God especially by affording them an
opportunity peaceably to establish a form of government for their safety and
happiness.' " 4 Papers of George Washington 131: Presidential Series
(W. Abbot & D. Twohig eds. 1993).
Almost all succeeding Presidents have issued similar
Thanksgiving proclamations.
Later Presidents, at
critical times in the Nation's history, have likewise invoked the name of God. Abraham
Lincoln, concluding his masterful Gettysburg Address in 1863, used the very
phrase "under God":
"It
is rather for us to be here dedicated to the great task remaining before
us--that from these honored dead we take increased devotions to that cause for
which they gave the last full measure of devotion--that we here highly resolve
that these dead shall not have died in vain--that this nation, under God, shall
have a new birth of freedom--and that government of the people, by the people,
for the people, shall not perish from the earth." 1 Documents of American
History 429 (H. Commager ed. 8th ed. 1968).
Lincoln's equally well known second inaugural address,
delivered on March 4, 1865, makes repeated references to God, concluding with
these famous words:
"With
malice toward none, with charity for all, with firmness in the right as God
gives us to see the right, let us strive on to finish the work we are in, to
bind up the nation's wounds, to care for him who shall have borne the battle
and for his widow and his orphan, to do all which may achieve and cherish a
just and lasting peace among ourselves and with all nations." Id.,
at 443.
Woodrow Wilson appeared
before Congress in April 1917, to request a declaration of war against Germany.
He finished with these words:
"But
the right is more precious than peace, and we shall fight for the things which
we have always carried nearest our hearts,--for democracy, for the right of
those who submit to authority to have a voice in their own Governments, for the
rights and liberties of small nations, for a universal dominion of right for
such a concert of free peoples as shall bring peace and safety to all nations
and make the world itself at last free. To such a task we can dedicate our
lives and our fortunes, everything that we are and everything that we have,
with the pride of those who know that the day has come when America is
privileged to spend her blood and her might for the principles that gave her
birth and happiness and the peace which she has treasured. God helping her, she
can do no other." 2 id., at 132.
President Franklin
Delano Roosevelt, taking the office of the Presidency in the depths of the
Great Depression, concluded his first inaugural address with these words:
"In this dedication of a nation, we humbly ask the blessing of God. May He
protect each and every one of us! May He guide me in the days to come!" 2 id.,
at 242.
General Dwight D.
Eisenhower, who would himself serve two terms as President, concluded his
"Order of the Day" to the soldiers, sailors, and airmen of the Allied
Expeditionary Force on D-Day--the day on which the Allied Forces successfully
landed on the Normandy beaches in France--with these words: "Good Luck!
And
let us all beseech the blessings of Almighty God upon
this great and noble undertaking," http://www.eisenhower.
archives.gov/dl/DDay/SoldiersSailorsAirmen.pdf (all Internet materials as
visited June 9, 2004, and available in Clerk of Court's case file).
The motto "In God
We Trust" first appeared on the country's coins during the Civil War.
Secretary of the Treasury Salmon P. Chase, acting under the authority of an Act
of Congress passed in 1864, prescribed that the motto should appear on the two
cent coin. The motto was placed on more and more denominations, and since 1938
all United States coins bear the motto. Paper currency followed suit at a
slower pace; Federal Reserve notes were so inscribed during the decade of the
1960's. Meanwhile, in 1956, Congress declared that the motto of the United
States would be "In God We Trust." Act of July 30, 1956, ch. 795, 70
Stat. 732.
Our Court Marshal's
opening proclamation concludes with the words " 'God save the United
States and this honorable Court.' " The language goes back at least
as far as 1827. O. Smith, Early Indiana Trials and Sketches: Reminiscences
(1858) (quoted in 1 C. Warren, The Supreme Court in United States History 469
(rev. ed. 1926)).
All of these events
strongly suggest that our national culture allows public recognition of our
Nation's religious history and character. In the words of the House Report that
accompanied the insertion of the phrase "under God" in the Pledge:
"From 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). Giving additional support to this idea is our national anthem
"The Star-Spangled Banner," adopted as such by Congress in 1931. 36 U. S. C.
§301 and Historical and Revision Notes. The last verse ends with these words:
"Then
conquer we must, when our cause it is just,
"And
this be our motto: 'In God is our trust.'
"And
the star-spangled banner in triumph shall wave
"O'er
the land of the free and the home of the brave!"
http://www.bcpl.net/~etowner/anthem.html.
As pointed out by the
Court, California law requires public elementary schools to "conduc[t] ...
appropriate patriotic exercises" at the beginning of the schoolday, and
notes that the "giving of the Pledge of Allegiance to the Flag of the
United States of America shall satisfy the requirements of this section."
Cal. Educ. Code Ann. §52720 (West 1989). The School District complies with this
requirement by instructing that "[e]ach elementary school class recite the
[P]ledge of [A]llegiance to the [F]lag once each day." App. 149-150.
Students who object on religious (or other) grounds may abstain from the
recitation. West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624,
642 (1943) (holding that the government may not
compel school students to recite the Pledge).
Notwithstanding the voluntary
nature of the School District policy, the Court of Appeals, by a divided vote,
held that the policy violates the Establishment Clause of the First Amendment
because it "impermissibly coerces a religious act." Newdow
v. United States Congress, 328 F. 3d 466, 487 (CA9 2003). To
reach this result, the court relied primarily on our decision in Lee v.
Weisman, 505 U. S. 577 (1992). That case arose out of a graduation ceremony for a public high
school in Providence, Rhode Island. The ceremony was begun with an invocation,
and ended with a benediction, given by a local rabbi. The Court held that even
though attendance at the ceremony was voluntary, students who objected to the
prayers would nonetheless feel coerced to attend and to stand during each
prayer. But the Court throughout its opinion referred to the prayer as "an
explicit religious exercise," id., at 598, and "a formal
religious exercise," id., at 589.
As the Court notes in
its opinion, "the Pledge of Allegiance evolved as a common public
acknowledgement of the ideals that our flag symbolizes. Its recitation is a
patriotic exercise designed to foster national unity and pride in those
principles." Ante, at 2.
I do not believe that
the phrase "under God" in the Pledge converts its recital into a
"religious exercise" of the sort described in Lee. Instead,
it is a declaration of belief in allegiance and loyalty to the United States
flag and the Republic that it represents. The phrase "under God" is
in no sense a prayer, nor an endorsement of any religion, but a simple
recognition of the fact noted in H. R. Rep. No. 1693, at 2: "From 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." Reciting the Pledge, or listening to others recite it, is a
patriotic exercise, not a religious one; participants promise fidelity to our
flag and our Nation, not to any particular God, faith, or church.4
There is no doubt that
respondent is sincere in his atheism and rejection of a belief in God. But the
mere fact that he disagrees with this part of the Pledge does not give him a
veto power over the decision of the public schools that willing participants
should pledge allegiance to the flag in the manner prescribed by Congress.
There may be others who disagree, not with the phrase "under God,"
but with the phrase "with liberty and justice for all." But surely
that would not give such objectors the right to veto the holding of such a
ceremony by those willing to participate. Only if it can be said that the phrase
"under God" somehow tends to the establishment of a religion in
violation of the First Amendment can respondent's claim succeed, where one
based on objections to "with liberty and justice for all" fails. Our
cases have broadly interpreted this phrase, but none have gone anywhere near as
far as the decision of the Court of Appeals in this case. The recital, in a
patriotic ceremony pledging allegiance to the flag and to the Nation, of the
descriptive phrase "under God" cannot possibly lead to the establishment
of a religion, or anything like it.
When courts extend
constitutional prohibitions beyond their previously recognized limit, they may
restrict democratic choices made by public bodies. Here, Congress prescribed a
Pledge of Allegiance, the State of California required patriotic observances in
its schools, and the School District chose to comply by requiring teacher-led
recital of the Pledge of Allegiance by willing students. Thus, we have three
levels of popular government--the national, the state, and the
local--collaborating to produce the Elk Grove ceremony. The Constitution only
requires that schoolchildren be entitled to abstain from the ceremony if they
chose to do so. To give the parent of such a child a sort of "heckler's
veto" over a patriotic ceremony willingly participated in by other
students, simply because the Pledge of Allegiance contains the descriptive
phrase "under God," is an unwarranted extension of the Establishment
Clause, an extension which would have the unfortunate effect of prohibiting a
commendable patriotic observance.
ELK GROVE UNIFIED SCHOOL DISTRICT and
DAVID
W. GORDON, SUPERINTENDENT, PETITIONERS
v. MICHAEL A. NEWDOW et al.
on writ of certiorari to the united states court of appeals for the
ninth circuit
[June 14, 2004]
Justice O'Connor,
concurring in the judgment.
I join the concurrence of The Chief Justice in full. Like him, I would follow our policy of deferring to the Federal Courts of Appeals in matters that involve the interpretation of state law, see Bowen v. Massachusetts,