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Jesse Choper

Jesse H. Choper, the Earl Warren Professor of Public Law at UC Berkeley's Boalt Hall School of Law. (Bonnie Powell photo)

Supreme Court sidesteps Pledge of Allegiance issue, but the legal question will resurface predicts law school professor

 Michael Newdow
Michael Newdow arguing his case in February moot-court proceeding held at Boalt Hall. (Photo courtesy of American Constitution Society)

– A parent's legal effort to have the the words "under God" removed from the Pledge of Allegiance was rejected by the U.S. Supreme Court on Monday. The court did not decide the constitutional question of whether the phrase violates the constitutional separation of church and state, instead ruling that Californian Michael Newdow did not have legal standing to bring the challenge on behalf of his daughter. The court said that Newdow did not have legal custody of his 9-year-old girl at the time he filed his lawsuit.

The Court's decision left open the possibility of future challenges. The 8-0 decision overturned a ruling by the San Francisco-based 9th U.S. Circuit Court of Appeals. The appeals court ruled in June 2002 that requiring the pledge to be recited as written is unconstitutional because the words "under God" are tantamount to an endorsement of religion and thus violate the constitutional separation of church and state.

"This is not a surprising decision," said law professor Jesse Choper of the UC Berkeley School of Law (Boalt Hall). "They say discretion is the better part of valor and that's what the court did: It exercised its discretion and effectively said we're going to avoid resolving this controversial issue today."

Choper believes the potential public disapproval of a ruling on the merits of this case was at least some factor in the high court's decision. However, he said, the technical issue of Michael Newdow's standing to represent his daughter is a valid one.

"There's a serious issue here," he said. "The mother says she wants her daughter to recite the Pledge. The mother says the daughter wants to recite the Pledge. The father does not want her to recite the Pledge. What you do when the two sides conflict is complicated."

The chances are very good that this issue will be brought before the high court again, Choper said, perhaps in a case in which both parents and the child all are against reciting the Pledge. Choper predicts that the current court would accept the case and would likely uphold the Pledge, considering it more of a ceremonial exercise than a religious one.

Additional information:

  • Text of U.S. Supreme Court ruling
  • Jesse Choper's essay on the legal merits of the case
  • Jesse Choper in conversation with UC Berkeley Chancellor Robert M. Berdahl about how the phrase "under God" came to be inserted in the Pledge (RealPlayer audio file)
  • The American Constitution Society at UC Berkeley's Boalt Hall School of Law held a moot court hearing on February 19 in which Newdow argued his case against Hastings College of Law professor Vikram Amar, representing Elk Grove. A webcast of Newdow and Amar's oral arguments is online. A majority of the distinguished panel of judges agreed with Newdow's interpretation of the law and their discussion of the case also can be viewed via webcast.
  • The American Constitution Society website has collected briefs and background materials relating to the case for public review.