Each day elementary school teachers in the Elk Grove Unified School District (School District) lead their classes in
"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 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."
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:
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.
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
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 School District and its superintendent.
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
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).
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,"
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
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.
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
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.
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 justertii, 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.
Nothing that either Banning or the School Board has done, however, impairs Newdow's right to instruct his daughter in
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
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.
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.
The Court correctly notes that "our standing jurisprudence contains two strands: Article III standing, which enforces
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 17. 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
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 13. The Court perfunctorily states: "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." Ante, at 13. 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,
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 13, 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 13. 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,
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 religious education of his daughter." Newdow v. U. S. 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. U. S. 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."
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 17. 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 16, 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
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.
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.
The Pledge of Allegiance reads:
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
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
Later the same year, after encouragement from Congress,
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":
Lincoln's equally well-known second inaugural address, delivered on March 4, 1865, makes repeated references to God, concluding with these famous words:
Woodrow Wilson appeared before Congress in April 1917, to request a declaration of war against Germany. He finished with these words:
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 blessing 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)).
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
As the Court notes in its opinion, "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." Ante, at 6.
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.
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
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, 487 U.S. 879 (1988), and thereby conclude that respondent Newdow does have standing to bring his constitutional claim before a federal court. Like THE CHIEF JUSTICE, I believe that we must examine those questions, and, like him, I believe that petitioner school district's policy of having its teachers lead students in voluntary recitations of the Pledge of Allegiance does not offend the Establishment Clause. But while the history presented by THE CHIEF JUSTICE illuminates the constitutional problems this case presents, I write separately to explain the principles that guide my own analysis of the constitutionality of that policy.
As I have said before, the Establishment Clause "cannot easily be reduced to a single test. There are different categories of Establishment Clause cases, which may call for different approaches." Board of Ed. of Kiryas Joel Village School Dist. v. Grumet, 512 U.S. 687, 720 (1994) (concurring opinion). When a court confronts a challenge to
Endorsement, I have explained, "sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community." Ibid. In order to decide whether endorsement has occurred, a reviewing court must keep in mind two crucial and related principles.
First, because the endorsement test seeks "to identify those situations in which government makes adherence to a religion relevant ... to a person's standing in the political community," it assumes the viewpoint of a reasonable observer. Pinette, 515 U. S., at 772 (internal quotation marks omitted). Given the dizzying religious heterogeneity of our
The Court has permitted government, in some instances, to refer to or commemorate religion in public life. See, e. g., Pinette, supra; Allegheny, supra; Lynch, supra; Marsh v. Chambers, 463 U.S. 783 (1983). While the Court's explicit rationales have varied, my own has been consistent; I believe that although these references speak in the language of religious belief, they are more properly understood as employing the idiom for essentially secular purposes. One such purpose is to commemorate the role of religion in our history. In my view, some references to religion in public life and government are the inevitable consequence of our Nation's origins. Just as the Court has refused to ignore changes in the religious composition of our Nation in explaining the modern scope of the Religion Clauses, see, e. g., Wallace, supra, at 52-54 (even if the Religion Clauses were originally meant only to forestall intolerance between Christian sects, they now encompass all forms of religious conscience), it should not deny that our history has left its mark on our national traditions. It is unsurprising that a Nation founded by religious refugees and dedicated to religious freedom should find references to divinity in its symbols, songs, mottoes,
Facially religious references can serve other valuable purposes in public life as well. Twenty years ago, I wrote that such references "serve, in the only ways reasonably possible in our culture, the legitimate secular purposes of solemnizing public occasions, expressing confidence in the future, and encouraging the recognition of what is worthy of appreciation in society." Lynch, supra, at 692-693 (concurring opinion). For centuries, we have marked important occasions or pronouncements with references to God and invocations of divine assistance. Such references can serve to solemnize an occasion instead of to invoke divine provenance. The reasonable observer discussed above, fully aware of our national history and the origins of such practices, would not perceive these acknowledgments as signifying a government endorsement of any specific religion, or even of religion over nonreligion.
There are no de minimis violations of the Constitution — no constitutional harms so slight that the courts are obliged
This case requires us to determine whether the appearance of the phrase "under God" in the Pledge of Allegiance constitutes an instance of such ceremonial deism. Although it is a close question, I conclude that it does, based on my evaluation of the following four factors.
History and Ubiquity
The constitutional value of ceremonial deism turns on a shared understanding of its legitimate nonreligious purposes. That sort of understanding can exist only when a given practice has been in place for a significant portion of the Nation's history, and when it is observed by enough persons that it can fairly be called ubiquitous. See Lynch, 465 U. S., at 693. By contrast, novel or uncommon references to religion can more easily be perceived as government endorsements because the reasonable observer cannot be presumed to be fully familiar with their origins. As a result, in examining whether a given practice constitutes an instance of ceremonial deism, its "history and ubiquity" will be of great importance. As I explained in Allegheny, supra, at 630-631:
Fifty years have passed since the words "under God" were added, a span of time that is not inconsiderable given the relative youth of our Nation. In that time, the Pledge has become, alongside the singing of The Star-Spangled Banner, our most routine ceremonial act of patriotism; countless schoolchildren recite it daily, and their religious heterogeneity reflects that of the Nation as a whole. As a result, the Pledge and the context in which it is employed are familiar and nearly inseparable in the public mind. No reasonable observer could have been surprised to learn the words of the Pledge, or that petitioner school district has a policy of leading its students in daily recitation of the Pledge.
It cannot be doubted that "no one acquires a vested or protected right in violation of the Constitution by long use, even when that span of time covers our entire national existence and indeed predates it. Yet an unbroken practice . . . is not something to be lightly cast aside." Walz v. Tax Comm'n of City of New York, 397 U.S. 664, 678 (1970). And the history of a given practice is all the more relevant when the practice has been employed pervasively without engendering significant controversy. In Lynch, where we evaluated the constitutionality of a town Christmas display that included a creche, we found relevant to the endorsement question the fact that the display had "apparently caused no political divisiveness prior to the filing of this lawsuit" despite its use for over 40 years. See 465 U. S., at 692-693. Similarly, in the 50 years that the Pledge has been recited as it is now, by millions of children, this was, at the time of its filing, only the third reported case of which I am aware to
Absence of worship or prayer
"[O]ne of the greatest dangers to the freedom of the individual to worship in his own way [lies] in the Government's placing its official stamp of approval upon one particular kind of prayer or one particular form of religious services."
Of course, any statement can be imbued by a speaker or listener with the qualities of prayer. But, as I have explained, the relevant viewpoint is that of a reasonable observer, fully cognizant of the history, ubiquity, and context of the practice in question. Such an observer could not conclude that reciting the Pledge, including the phrase "under God," constitutes an instance of worship. I know of no religion that incorporates the Pledge into its canon, nor one that would count the Pledge as a meaningful expression of religious faith. Even if taken literally, the phrase is merely descriptive; it purports only to identify the United States as a Nation subject to divine authority. That cannot be seen as a serious invocation of God or as an expression of individual submission to divine authority. Cf. Engel, supra, at 424 (describing prayer as "a solemn avowal of divine faith and supplication for the blessings of the Almighty"). A reasonable observer would note that petitioner school district's policy of Pledge recitation appears under the heading of "Patriotic Exercises," and the California law which it implements refers
It is true that some of the legislators who voted to add the phrase "under God" to the Pledge may have done so in an attempt to attach to it an overtly religious message. See H. R. Rep. No. 1693, 83d Cong., 2d Sess., pp. 2-3 (1954). But their intentions cannot, on their own, decide our inquiry. First of all, those legislators also had permissible secular objectives in mind — they meant, for example, to acknowledge the religious origins of our Nation's belief in the "individuality and the dignity of the human being." Id., at 1. Second — and more critically — the subsequent social and cultural history of the Pledge shows that its original secular character was not transformed by its amendment. In School Dist. of Abington Township v. Schempp, 374 U.S. 203 (1963), we explained that a government may initiate a practice "for the impermissible purpose of supporting religion" but nevertheless "retai[n] the la[w] for the permissible purpose of furthering overwhelmingly secular ends." Id., at 263-264 (citing McGowan v. Maryland, 366 U.S. 420 (1961)). Whatever the sectarian ends its authors may have had in mind, our continued repetition of the reference to "one Nation under God" in an exclusively patriotic context has shaped the cultural significance of that phrase to conform to that context. Any religious freight the words may have been meant to carry originally has long since been lost. See Lynch, 465 U. S., at 716 (Brennan, J., dissenting) (suggesting that the reference to God in the Pledge might be permissible because it has "lost through rote repetition any significant religious content").
Absence of reference to particular religion
"The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another." Larson v. Valente, 456 U.S. 228, 244 (1982). While general acknowledgments of religion need not be viewed by reasonable observers as denigrating the nonreligious, the same cannot be said of instances "where the endorsement is sectarian, in the sense of specifying details upon which men and women who believe in a benevolent, omnipotent Creator and Ruler of the world are known to differ." Weisman, supra, at 641 (SCALIA, J., dissenting). As a result, no religious acknowledgment could claim to be an instance of ceremonial deism if it explicitly favored one particular religious belief system over another.
The Pledge complies with this requirement. It does not refer to a nation "under Jesus" or "under Vishnu," but instead acknowledges religion in a general way: a simple reference to a generic "God." Of course, some religions — Buddhism, for instance — are not based upon a belief in a separate Supreme Being. See Brief for Buddhist Temples et al. as Amici Curiae 15-16. But one would be hard pressed to imagine a brief solemnizing reference to religion that would adequately encompass every religious belief expressed by any citizen of this Nation. The phrase "under God," conceived and added at a time when our national religious diversity was neither as robust nor as well recognized as it is now, represents a tolerable attempt to acknowledge religion and to invoke its solemnizing power without favoring any individual religious sect or belief system.
Minimal religious content
A final factor that makes the Pledge an instance of ceremonial deism, in my view, is its highly circumscribed reference to God. In most of the cases in which we have struck down government speech or displays under the Establishment Clause, the offending religious content has been much more
The reference to "God" in the Pledge of Allegiance qualifies as a minimal reference to religion; respondent's challenge focuses on only two of the Pledge's 31 words. Moreover, the presence of those words is not absolutely essential to the Pledge, as demonstrated by the fact that it existed without them for over 50 years. As a result, students who wish to avoid saying the words "under God" still can consider themselves meaningful participants in the exercise if they join in reciting the remainder of the Pledge.
I have framed my inquiry as a specific application of the endorsement test by examining whether the ceremony or representation would convey a message to a reasonable observer, familiar with its history, origins, and context, that those who do not adhere to its literal message are political outsiders. But consideration of these factors would lead me to the same result even if I were to apply the "coercion" test that has featured in several opinions of this Court. Santa Fe Independent School Dist. v. Doe, 530 U.S. 290 (2000); Lee v. Weisman, 505 U.S. 577 (1992).
* * *
Michael Newdow's challenge to petitioner school district's policy is a well-intentioned one, but his distaste for the reference to "one Nation under God," however sincere, cannot be the yardstick of our Establishment Clause inquiry. Certain ceremonial references to God and religion in our Nation are the inevitable consequence of the religious history that gave birth to our founding principles of liberty. It would be ironic indeed if this Court were to wield our constitutional
JUSTICE THOMAS, concurring in the judgment.
We granted certiorari in this case to decide whether the Elk Grove Unified School District's Pledge policy violates the Constitution. The answer to that question is: "no." But in a testament to the condition of our Establishment Clause jurisprudence, the Court of Appeals reached the opposite conclusion based on a persuasive reading of our precedent, especially Lee v. Weisman, 505 U.S. 577 (1992). In my view, Lee adopted an expansive definition of "coercion" that cannot be defended however one decides the "difficult question" of "[w]hether and how th[e Establishment] Clause should constrain state action under the Fourteenth Amendment." Zelman v. Simmons-Harris, 536 U.S. 639, 678 (2002) (THOMAS, J., concurring). The difficulties with our Establishment Clause cases, however, run far deeper than Lee.
Because I agree with THE CHIEF JUSTICE that respondent Newdow has standing, I would take this opportunity to begin the process of rethinking the Establishment Clause. I would acknowledge that the Establishment Clause is a federalism provision, which, for this reason, resists incorporation.
In Lee, the Court held that invocations and benedictions could not, consistent with the Establishment Clause, be given at public secondary school graduations. The Court emphasized "heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools." 505 U. S., at 592. It brushed aside both the fact that the students were not required to attend the graduation, see id., at 586 (asserting that student "attendance and participation in" the graduation ceremony "are in a fair and real sense obligatory"), and the fact that they were not compelled, in any meaningful sense, to participate in the religious component of the graduation ceremony, see id., at 593 ("What matters is that, given our social conventions, a reasonable dissenter in this milieu could believe that the group exercise signified her own participation or approval of it"). The Court surmised that the prayer violated the Establishment Clause because a high school student could — in light of the "peer pressure" to attend graduation and "to stand as a group or, at least, maintain respectful silence during the invocation and benediction," ibid. — have "a reasonable perception that she is being forced by the State to pray in a manner her conscience will not allow," ibid.
Adherence to Lee would require us to strike down the Pledge policy, which, in most respects, poses more serious difficulties than the prayer at issue in Lee. A prayer at graduation is a one-time event, the graduating students are almost (if not already) adults, and their parents are usually present. By contrast, very young students, removed from the protection of their parents, are exposed to the Pledge each and every day.
Analysis of the second form of "coercion" identified in Lee is somewhat more complicated. It is true that since this Court decided West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624 (1943), States cannot compel (in the traditional sense) students to pledge their allegiance. Formally, then, dissenters can refuse to pledge, and this refusal would be clear to onlookers.
To be sure, such an affirmation is not a prayer, and I admit that this might be a significant distinction. But the Court has squarely held that the government cannot require a person to "declare his belief in God." Torcaso v. Watkins, 367 U.S. 488, 489 (1961); id., at 495 ("We repeat and again reaffirm that neither a State nor the Federal Government can constitutionally force a person `to profess a belief or disbelief in any religion'"); see also Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872, 877 (1990) ("The government may not compel affirmation of religious belief"); Widmar v. Vincent, 454 U.S. 263, 269-270, n. 6 (1981) (rejecting attempt to distinguish worship from other forms of religious speech). And the Court has said, in my view questionably, that the Establishment Clause "prohibits government from appearing to take a position on questions of religious belief." County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573,
I conclude that, as a matter of our precedent, the Pledge policy is unconstitutional. I believe, however, that Lee was wrongly decided. Lee depended on a notion of "coercion" that, as I discuss below, has no basis in law or reason. The kind of coercion implicated by the Religion Clauses is that accomplished "by force of law and threat of penalty." 505 U. S., at 640 (SCALIA, J., dissenting); see id., at 640-645. Peer pressure, unpleasant as it may be, is not coercion. But rejection of Lee-style "coercion" does not suffice to settle this case. Although children are not coerced to pledge their allegiance, they are legally coerced to attend school. Cf., e. g., Schempp, supra; Engel v. Vitale, 370 U.S. 421 (1962). Because what is at issue is a state action, the question becomes whether the Pledge policy implicates a religious liberty right protected by the Fourteenth Amendment.
I accept that the Free Exercise Clause, which clearly protects an individual right, applies against the States through the Fourteenth Amendment. See Zelman, 536 U. S., at 679, and n. 4 (THOMAS, J., concurring). But the Establishment Clause is another matter. The text and history of the Establishment Clause strongly suggest that it is a federalism provision intended to prevent Congress from interfering with state establishments. Thus, unlike the Free Exercise Clause, which does protect an individual right, it makes little sense to incorporate the Establishment Clause. In any case, I do not believe that the Pledge policy infringes any religious liberty right that would arise from incorporation of the Clause. Because the Pledge policy also does not infringe any free-exercise rights, I conclude that it is constitutional.
The Establishment Clause provides that "Congress shall make no law respecting an establishment of religion."
Nothing in the text of the Clause suggests that it reaches any further. The Establishment Clause does not purport to protect individual rights. By contrast, the Free Exercise Clause plainly protects individuals against congressional interference with the right to exercise their religion, and the remaining Clauses within the First Amendment expressly disable Congress from "abridging [particular] freedom[s]." (Emphasis added.) This textual analysis is consistent with the prevailing view that the Constitution left religion to the States. See, e.g., 2 J. Story, Commentaries on the Constitution of the United States § 1873 (5th ed. 1891); see also Amar, The Bill of Rights, at 32-42; id., at 246-257. History also supports this understanding: At the founding, at least six States had established religions, see McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1437 (1990). Nor has this federalism point escaped the notice of Members of this Court. See, e. g., Zelman, supra, at 677-680 (THOMAS, J., concurring); Lee, supra, at 641 (SCALIA, J., dissenting).
Quite simply, the Establishment Clause is best understood as a federalism provision — it protects state establishments from federal interference but does not protect any individual right. These two features independently make incorporation of the Clause difficult to understand. The best argument in favor of incorporation would be that, by disabling Congress from establishing a national religion, the Clause protected an individual right, enforceable against the Federal
But even assuming that the Establishment Clause precludes the Federal Government from establishing a national religion, it does not follow that the Clause created or protects any individual right. For the reasons discussed above, it is more likely that States and only States were the direct beneficiaries. See also Lee, supra, at 641 (SCALIA, J., dissenting). Moreover, incorporation of this putative individual right leads to a peculiar outcome: It would prohibit precisely what the Establishment Clause was intended to protect — state establishments of religion. See Schempp, 374 U. S., at 310 (Stewart, J., dissenting) (noting that "the Fourteenth Amendment has somehow absorbed the Establishment Clause, although it is not without irony that a constitutional provision evidently designed to leave the States free to go their own way should now have become a restriction upon their autonomy"). Nevertheless, the potential right against federal establishments is the only candidate for incorporation.
I would welcome the opportunity to consider more fully the difficult questions whether and how the Establishment Clause applies against the States. One observation suffices for now: As strange as it sounds, an incorporated Establishment Clause prohibits exactly what the Establishment Clause protected — state practices that pertain to "an establishment of religion." At the very least, the burden of persuasion rests with anyone who claims that the term took on a different meaning upon incorporation. We must therefore determine whether the Pledge policy pertains to an "establishment of religion."
The traditional "establishments of religion" to which the Establishment Clause is addressed necessarily involve actual legal coercion:
Even if "establishment" had a broader definition, one that included support for religion generally through taxation, the element of legal coercion (by the State) would still be present. See id., at 641.
It is also conceivable that a government could "establish" a religion by imbuing it with governmental authority, see, e. g., Larkin v. Grendel's Den, Inc., 459 U.S. 116 (1982), or by "delegat[ing] its civic authority to a group chosen according to a religious criterion," Board of Ed. of Kiryas Joel Village School Dist. v. Grumet, 512 U.S. 687, 698 (1994); County of Allegheny, 492 U. S., at 590-591. A religious organization that carries some measure of the authority of the State begins to look like a traditional "religious establishment," at least when that authority can be used coercively. See also Zorach v. Clauson, 343 U.S. 306, 319 (1952) (Black,
It is difficult to see how government practices that have nothing to do with creating or maintaining the sort of coercive state establishment described above implicate the possible liberty interest of being free from coercive state establishments. In addressing the constitutionality of voluntary school prayer, Justice Stewart made essentially this point, emphasizing that "we deal here not with the establishment of a state church, . . . but with whether school children who want to begin their day by joining in prayer must be prohibited from doing so." Engel, 370 U. S., at 445 (dissenting opinion).
To be sure, I find much to commend the view that the Establishment Clause "bar[s] governmental preferences for particular religious faiths." Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 856 (1995) (THOMAS, J., concurring). But the position I suggest today is consistent with this. Legal compulsion is an inherent component of "preferences" in this context. James Madison's Memorial and Remonstrance Against Religious Assessments (reprinted
Through the Pledge policy, the State has not created or maintained any religious establishment, and neither has it granted government authority to an existing religion. The Pledge policy does not expose anyone to the legal coercion associated with an established religion. Further, no other free-exercise rights are at issue. It follows that religious liberty rights are not in question and that the Pledge policy fully comports with the Constitution.
Briefs of amici curiae urging affirmance were filed for American Atheists by Paul Sanford; for the American Humanist Association et al. by Elizabeth L. Hileman; for Americans United for Separation of Church and State et al. by David H. Remes, Ayesha Khan, and Steven R. Shapiro; for the Anti-Defamation League by Martin E. Karlinsky, Martin S. Lederman, Steven M. Freeman, Michael Lieberman, Frederick M. Lawrence, Howard W. Goldstein, and Erwin Chemerinsky; for Associated Pantheist Groups by Michael C. Worsham and Dov M. Szego; for Atheists for Human Rights by Jerold M. Gorski; for Buddhist Temples et al. by Kenneth R. Pierce; for the Church of Freethought by Keith Alan; for the Council for Secular Humanism by Edward Tabash; for the Freedom From Religion Foundation, Inc., by Robert Reitano Tiernan; for Historians and Law Scholars by Steven K. Green and Steven G. Gey; for Religious Scholars and Theologians by Peter Irons; for Rob Sherman Advocacy by Richard D. Grossman; for Seattle Atheists et al. by Gary D. Borek; for United Fathers of America et al. by Mr. Gorski; for Rev. Dr. Betty Jane Bailey et al. by Douglas Laycock; for Christopher L. Eisgruber et al. by Lawrence G. Sager; and for Barbara A. McGraw by Ms. McGraw, pro se.
Briefs of amici curiae were filed for Atheists and other Freethinkers by Dean Robert Johansson; for the Atheist Law Center by Pamela L. Sumners and Larry Darby; for the Common Good Foundation et al. by Keith A. Fournier and John G. Stepanovich; for Thurston Greene by Mr. Greene, pro se; for Joseph R. Grodin by Neal Katyal and Richard A. Epstein; and for Mister Thorne by Ronald K. Losch.
"The parties will have joint legal custody defined as follows: Ms. Banning will continue to make the final decisions as to the minor's health, education, and welfare if the two parties cannot mutually agree. The parties are required to consult with each other on substantial decisions relating to the health, education and welfare of the minor child, including ... psychological and educational needs of the minor. If mutual agreement is not reached in these areas, then Ms. Banning may exercise legal control of the minor that is not specifically prohibited or is inconsistent with the physical custody." App. to Reply Brief for United States as Respondent Supporting Petitioners 12a.
Despite the use of the term "joint legal custody"—which is defined by California statute, see Cal. Fam. Code Ann. § 3003 (West 1994)—we see no meaningful distinction for present purposes between the custody order issued February 6, 2002, and the one issued January 9, 2004. Under either order, Newdow has the right to consult on issues relating to the child's education, but Banning possesses what we understand amounts to a tie-breaking vote.
"`To the extent that by not naming her you have ... an individual right as a parent to say that, "not only for all the children of the world but in—mine in particular, I believe that this child—my child is being harmed," but the child is . . . not actually part of the suit, I don't know that there's any way that this court could preclude that.'" App. to Brief for Respondent Newdow B4.
The California court did not reject Newdow's right as distinct from his daughter's, and we should not either.