ELK GROVE UNIFIED SCHOOL DIST. V. NEWDOW (02-1624) 542 U.S. 1 (2004)
328 F.3d 466, reversed.
[ Stevens ]
[ Rehnquist ]
[ O’Connor ]
[ Thomas ]
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Rehnquist, C. J., concurring in judgment


No. 02—1624



[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.


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

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:

“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/SoldiersSailorsA irmen.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!”


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.


1. I note that respondent contends that he has never been a “noncustodial” parent and points out that under the state court’s most recent order he enjoys joint legal custody. Brief for Respondent Newdow 40.

2. Also as properly described, it is clear that this is not the same as a next-friend suit. The Court relies on the fact that respondent “[was] deprived under California law of the right to sue as next friend.” Ante, at 14. The same Superior Court that determined that respondent could not sue as next friend stated: “ ‘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.

3. “The day after the First Amendment was proposed, Congress urged President Washington to proclaim ‘a day of public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favours of Almighty God.’ ” Lynch v. Donnelly, 465 U.S. 668, 675, n. 2 (1984).

4. Justice Thomas concludes, based partly on West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624 (1943), that Lee v. Weisman, 505 U.S. 577 (1992), coercion is present in the School District policy. Post, at 3—5 (opinion concurring in judgment). I cannot agree. Barnette involved a board of education policy that compelled students to recite the Pledge. 319 U.S., at 629. There was no opportunity to opt out, as there is in the present case. “Failure to conform [was] ‘insubordination’ dealt with by expulsion. Readmission [was] denied by statute until compliance. Meanwhile the expelled child [was] ‘unlawfully absent’ and [could] be proceeded against as a delinquent. His parents or guardians [were] liable to prosecution, and if convicted [were] subject to a fine not exceeding $50 and jail term not exceeding thirty days.” Ibid. (footnotes omitted). I think there is a clear difference between compulsion (Barnette) and coercion (Lee). Compulsion, after Barnette, is not permissible, and it is not an issue in this case. And whatever the virtues and vices of Lee, the Court was concerned only with “formal religious exercise[s],” 505 U.S., at 589, which the Pledge is not.