ELK GROVE UNIFIED SCHOOL DISTRICT et al. v. NEWDOW et al.

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CASES ADJUDGED
IN THE
SUPREME COURT OF THE UNITED STATES
AT
OCTOBER TERM, 2003
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 partic-
ipates in this exercise. Newdow, an atheist, filed suit alleging that, be-
cause the Pledge contains the words “under God,” it constitutes reli-
gious 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 Establish-
ment 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 contra-
1

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2 ELK GROVE UNIFIED SCHOOL DIST. v. NEWDOW
Syllabus
dict 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, un-
representative 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 Bur-
rus, 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 Ban-
ning filed her motion to intervene or dismiss, declaring that the family
court order gave her “sole legal custody” and authorized her to “exer-
cise legal control” over her daughter. Newdow’s argument that he nev-
ertheless 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 im-
portant, 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 in-
struct 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 Califor-
nia cases simply do not stand for the proposition that Newdow has a
right to reach outside the private parent-child sphere to dictate to oth-
ers 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. 11–18.
328 F. 3d 466, reversed.

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3 Cite as: 542 U. S. 1 (2004)
Syllabus
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, post, p. 18. O’Connor, J., post,
p. 33, and Thomas, J., post, p. 45, filed opinions concurring in the judgment.
Scalia, J., took no part in the consideration or decision of the case.
Terence J. Cassidy argued the cause for petitioners. With
him on the briefs was Michael W. Pott.
Solicitor General Olson argued the cause for the United
States as respondent under this Court’s Rule 12.6 in support
of petitioners. With him on the briefs were Assistant At-
torney General Keisler, Deputy Solicitor General Clement,
Deputy Assistant Attorney General Katsas, Patricia A.
Millett, Robert M. Loeb, Lowell V. Sturgill, and Sushma
Soni.
Michael A. Newdow, pro se, argued the cause and filed a
brief as respondent.*
*Briefs of amici curiae urging reversal were filed for the State of Texas
et al. by Greg Abbott, Attorney General of Texas, R. Ted Cruz, Solicitor
General, Barry R. McBee, First Assistant Attorney General, Edward D.
Burbach and Don R. Willett, Deputy Attorneys General, Peter C. Harvey,
Acting Attorney General of New Jersey, and Gerald J. Pappert, Acting
Attorney General of Pennsylvania, and by the Attorneys General for their
respective States as follows: William H. Pryor, Jr., of Alabama, Gregg D.
Renkes of Alaska, Terry Goddard of Arizona, Mike Beebe of Arkansas,
Bill Lockyer of California, Ken Salazar of Colorado, Richard Blumenthal
of Connecticut, M. Jane Brady of Delaware, Charles J. Crist, Jr., of Flor-
ida, Thurbert E. Baker of Georgia, Mark J. Bennett of Hawaii, Lawrence
G. Wasden of Idaho, Lisa Madigan of Illinois, Steve Carter of Indiana,
Thomas J. Miller of Iowa, Phill Kline of Kansas, A. B. “Ben” Chandler
of Kentucky, Richard P. Ieyoub of Louisiana, G. Steven Rowe of Maine, J.
Joseph Curran, Jr., of Maryland, Thomas F. Reilly of Massachusetts, Mi-
chael A. Cox of Michigan, Mike Hatch of Minnesota, Mike Moore of Missis-
sippi, Jeremiah W. “Jay” Nixon of Missouri, Mike McGrath of Montana,
Jon Bruning of Nebraska, Brian Sandoval of Nevada, Peter W. Heed of
New Hampshire, Patricia A. Madrid of New Mexico, Eliot Spitzer of New
York, Roy Cooper of North Carolina, Wayne Stenehjem of North Dakota,
Jim Petro of Ohio, W. A. Drew Edmondson of Oklahoma, Hardy Myers of
Oregon, Patrick C. Lynch of Rhode Island, Henry McMaster of South

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4 ELK GROVE UNIFIED SCHOOL DIST. v. NEWDOW
Opinion of the Court
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
Carolina, Lawrence E. Long of South Dakota, Paul G. Summers of Tennes-
see, Mark L. Shurtleff of Utah, William H. Sorrell of Vermont, Jerry W.
Kilgore of Virginia, Christine O. Gregoire of Washington, Darrell V.
McGraw, Jr., of West Virginia, Peg Lautenschlager of Wisconsin, and Pat-
rick J. Crank of Wyoming; for the American Civil Rights Union by John
C. Armor and Peter Ferrara; for the American Jewish Congress by Marc
D. Stern and Norman Redlich; for the American Legion by Eric L. Hir-
schhorn and Philip B. Onderdonk, Jr.; for the Bipartisan Legal Advisory
Group of the United States House of Representatives by Geraldine R.
Gennet, Kerry W. Kircher, and Michael L. Stern; for the Catholic League
for Religious and Civil Rights et al. by Edward L. White III and Charles
S. LiMandri; for the Center for Individual Freedom by Renee L. Gia-
chino; for the Christian Legal Society et al. by Gregory S. Baylor, Kimber-
lee Wood Colby, and Stuart J. Lark; for Citizens United Foundation by
William J. Olson and John S. Miles; for the Claremont Institute Center
for Constitutional Jurisprudence by John C. Eastman, Edwin Meese III,
and Phillip J. Griego; for Focus on the Family et al. by Benjamin W. Bull,
Jordan W. Lorence, Kevin H. Theriot, Robert H. Tyler, and Patrick A.
Trueman; for Grassfire.net by John G. Stepanovich; for the Institute in
Basic Life Principles et al. by Bernard P. Reese, Jr.; for the Knights of
Columbus by Kevin J. Hasson, Anthony R. Picarello, Jr., Roman P.
Storzer, Carl A. Anderson, Paul R. Devin, and Robert A. Destro; for Lib-
erty Counsel et al. by Mathew D. Staver and Rena M. Lindevaldsen; for
the National Education Association by Robert H. Chanin and Jeremiah A.
Collins; for the National Jewish Commission on Law and Public Affairs
by Nathan Lewin, Alyza D. Lewin, Dennis Rapps, David Zwiebel, and
Richard B. Stone; for the National Lawyers Association Foundation by
Dennis Owens and Robert C. Cannada; for the National School Boards
Association by Lisa A. Brown, Erin Glenn Busby, Julie Underwood, and
Naomi Gittins; for the Pacific Justice Institute by Peter D. Lepiscopo; for
the Pacific Research Institute et al. by Sharon L. Browne and Russell C.
Brooks; for the Rutherford Institute by John W. Whitehead and Steven H.
Aden; for the United States Senate by Patricia Mack Bryan, Morgan J.
Frankel, Grant R. Vinik, and Thomas E. Caballero; for Wallbuilders, Inc.,
by Barry C. Hodge; for Senator George Allen et al. by Jay Alan Sekulow,
Stuart J. Roth, Colby M. May, James M. Henderson, Walter M. Weber,
Joel H. Thornton, John P. Tuskey, and Laura B. Hernandez; for Sandra
L. Banning by Kenneth W. Starr, Robert R. Gasaway, Ashley C. Parrish,
Stephen W. Parrish, and Paul E. Sullivan; for Senator John Cornyn et al.

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5 Cite as: 542 U. S. 1 (2004)
Opinion of the Court
a group recitation of the Pledge of Allegiance. Respondent,
Michael A. Newdow, is an atheist whose daughter partici-
pates 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 juris-
diction of the federal courts. We conclude that Newdow
lacks standing and therefore reverse the Court of Appeals’
decision.
by Mr. Cornyn, pro se; for Idaho Governor Dirk Kempthorne et al. by L.
Michael Bogert and David F. Hensley; and for Congressman Ron Paul
et al. by Richard D. Ackerman and Gary G. Kreep.
Briefs of amici curiae urging affirmance were filed for American Athe-
ists 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. Led-
erman, 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.

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6 ELK GROVE UNIFIED SCHOOL DIST. v. NEWDOW
Opinion of the Court
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 acknowledgment of the ideals that our
flag symbolizes. Its recitation is a patriotic exercise de-
signed 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 com-
memorating 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 Confer-
ences 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 de-
tailed 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:
“That the pledge of allegiance to the flag, ‘I pledge alle-
giance to the flag of the United States of America and
to the Republic for which it stands, one Nation indivisi-
ble, with liberty and justice for all’, be rendered by
1 J. Baer, The Pledge of Allegiance: A Centennial History, 1892–1992,
p. 3 (1992) (internal quotation marks omitted). At the time, the phrase
“one Nation indivisible” had special meaning because the question whether
a State could secede from the Union had been intensely debated and was
unresolved prior to the Civil War. See J. Randall, Constitutional Prob-
lems Under Lincoln 12–24 (rev. ed. 1964). See also W. Rehnquist, Centen-
nial Crisis: The Disputed Election of 1876, p. 182 (2004).

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Opinion of the Court
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, civil-
ians 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 ren-
der the military salute.” Id., at 380.
This resolution, which marked the first appearance of the
Pledge of Allegiance in positive law, confirmed the impor-
tance 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 Re-
port that accompanied the legislation observed that, “[f]rom
the time of our earliest history our peoples and our institu-
tions 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). 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 lib-
erty 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 pro-
vides that “[t]he giving of the Pledge of Allegiance to the
Flag of the United States of America shall satisfy” this re-
quirement. Ibid. The Elk Grove Unified School District
has implemented the state law by requiring that “[e]ach ele-
mentary school class recite the pledge of allegiance to the

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8 ELK GROVE UNIFIED SCHOOL DIST. v. NEWDOW
Opinion of the Court
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 School District and its
superintendent.3 App. 24. At the time of filing, Newdow’s
daughter was enrolled in kindergarten in the 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.
2 Elk Grove Unified School District’s Policy AR 6115, App. to Brief for
United States as Respondent Supporting Petitioners 2a.
3 Newdow also named as defendants the Sacramento City Unified School
District and its superintendent on the chance that his daughter might one
day attend school in that district. App. 48. The Court of Appeals held
that Newdow lacks standing to challenge that district’s policy because his
daughter is not currently a student there. Newdow v. U. S. Congress, 328
F. 3d 466, 485 (CA9 2003) (Newdow III). Newdow has not challenged
that ruling.
4 The First Amendment provides in relevant part that “Congress shall
make no law respecting an establishment of religion, or prohibiting the
free exercise thereof.” U. S. Const., Amdt. 1. The Religion Clauses
apply to the States by incorporation into the Fourteenth Amendment.
See Cantwell v. Connecticut, 310 U. S. 296, 303 (1940).

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Opinion of the Court
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 Dis-
trict 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 deci-
sions 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 educa-
tion 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, be-
cause his “ ‘injury in fact’ ” was “ ‘fairly traceable’ ” to its en-
actment. 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 daugh-
ter’s] legal interests and make all decision[s] about her edu-
cation” 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 daugh-
ter would be harmed if the litigation were permitted to pro-
ceed, because others might incorrectly perceive the child as
sharing her father’s atheist views. Id., at 85, ¶ 10. Ban-

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10 ELK GROVE UNIFIED SCHOOL DIST. v. NEWDOW
Opinion of the Court
ning 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 85. 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 recon-
sidered 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 New-
dow 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 ini-
tial 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 constitution-
ality 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 con-
sider 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 Amend-
ment. 540 U. S. 945 (2003).

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Opinion of the Court
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 particu-
lar 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 signifi-
cance are at stake. Even in cases concededly within our ju-
risdiction 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 deci-
sion.” Ashwander v. TVA, 297 U. S. 288, 346 (1936) (Bran-
deis, 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 con-
stitutional 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 jurispru-
dence contains two strands: Article III standing, which en-
forces 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,”

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12 ELK GROVE UNIFIED SCHOOL DIST. v. NEWDOW
Opinion of the Court
Allen, 468 U. S., at 751. The Article III limitations are fa-
miliar: 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 ex-
plained that prudential standing encompasses “the general
prohibition on a litigant’s raising another person’s legal
rights, the rule barring adjudication of generalized griev-
ances 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 in-
voked.” 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 ab-
stract 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 custom-
arily declined to intervene is the realm of domestic relations.
Long ago we observed that “[t]he whole subject of the do-
mestic relations of husband and wife, parent and child, be-
longs 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]o-
mestic 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

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13 Cite as: 542 U. S. 1 (2004)
Opinion of the Court
(1992). We have also acknowledged that it might be appro-
priate for the federal courts to decline to hear a case involv-
ing “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 ques-
tions of state law bearing on policy problems of substan-
tial 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 ex-
ists apart from the family law issue, see, e. g., Palmore v.
Sidoti, 466 U. S. 429, 432–434 (1984), in general it is appro-
priate for the federal courts to leave delicate issues of domes-
tic 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
5 Our holding does not rest, as The Chief Justice suggests, see post,
at 19–22 (opinion concurring in judgment), on either the domestic relations
exception or the abstention doctrine. Rather, our prudential standing
analysis is informed by the variety of contexts in which federal courts
decline to intervene because, as Ankenbrandt v. Richards, 504 U. S. 689
(1992), contemplated, the suit “depend[s] on a determination of the status
of the parties,” id., at 706. We deemed it appropriate to review the dis-
pute in Palmore because it “raise[d] important federal concerns arising
from the Constitution’s commitment to eradicating discrimination based
on race.” 466 U. S., at 432. In this case, by contrast, the disputed family
law rights are entwined inextricably with the threshold standing inquiry.
The Chief Justice in this respect, see post, at 21–22, misses our point:
The merits question undoubtedly transcends the domestic relations issue,
but the standing question surely does not.

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14 ELK GROVE UNIFIED SCHOOL DIST. v. NEWDOW
Opinion of the Court
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 pro-
vided 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 par-
ents 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 an-
nounced that the parents have “joint legal custody,” but that
Banning “makes the final decisions if the two . . . disagree.”
App. 127–128.6
6 The court confirmed that position in a written order issued January
9, 2004:
“The parties will have joint legal custody defined as follows: Ms. Ban-
ning will continue to make the final decisions as to the minor’s health,
education, and welfare if the two parties cannot mutually agree. The par-
ties are required to consult with each other on substantial decisions relat-
ing 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

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15 Cite as: 542 U. S. 1 (2004)
Opinion of the Court
Newdow contends that despite Banning’s final authority,
he retains “an unrestricted right to inculcate in his daugh-
ter—free from governmental interference—the atheistic be-
liefs 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 im-
portant, it implicates the interests of a young child who finds
herself at the center of a highly public debate over her cus-
tody, 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 relation-
ship 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
child’s education, but Banning possesses what we understand amounts to
a tie-breaking vote.
7 “There are good and sufficient reasons for th[e] prudential limitation
on standing when rights of third parties are implicated—the avoidance
of the adjudication of rights which those not before the Court may not
wish to assert, and the assurance that the most effective advocate of
the rights at issue is present to champion them.” Duke Power Co. v.
Carolina Environmental Study Group, Inc., 438 U. S. 59, 80 (1978).
Banning tells us that her daughter has no objection to the Pledge, and we
are mindful in cases such as this that “children themselves have constitu-
tionally protectible interests.” Wisconsin v. Yoder, 406 U. S. 205, 243

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16 ELK GROVE UNIFIED SCHOOL DIST. v. NEWDOW
Opinion of the Court
Newdow’s parental status is defined by California’s domes-
tic relations law. Our custom on questions of state law ordi-
narily is to defer to the interpretation of the Court of Ap-
peals 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 New-
dow 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 reli-
gious 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) (re-
lying on Murga to invalidate portion of restraining order
barring noncustodial father from engaging children in reli-
gious activity or discussion without custodial parent’s con-
sent). 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
(1972) (Douglas, J., dissenting). In a fundamental respect, “[i]t is the
future of the student, not the future of the parents,” that is at stake.
Id., at 245.

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17 Cite as: 542 U. S. 1 (2004)
Opinion of the Court
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, en-
dorses, and to use his parental status to challenge the influ-
ences 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 be-
tween 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. 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 enter-
tain 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 out-
come, 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 be-
tween 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, New-

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18 ELK GROVE UNIFIED SCHOOL DIST. v. NEWDOW
Rehnquist, C. J., concurring in judgment
dow 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 deci-
sion of this case.
Chief Justice Rehnquist, with whom Justice O’Con-
nor joins, and with whom Justice Thomas joins as to
Part I, concurring in the judgment.
The Court today erects a novel prudential standing princi-
ple in order to avoid reaching the merits of the constitu-
tional 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 stu-
dents 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 jurispru-
dence contains two strands: Article III standing, which en-
8 Newdow’s complaint and brief cite several additional bases for stand-
ing: that Newdow “at times has himself attended—and will in the future
attend—class with his daughter,” App. 49, ¶ 80; that he “has considered
teaching elementary school students in [the School District],” id., at 65,
¶ 120; that he “has attended and will continue to attend” school board
meetings at which the Pledge is “routinely recited,” id., at 52, ¶ 85; and
that the School District uses his tax dollars to implement its Pledge policy,
id., at 62–65. Even if these arguments suffice to establish Article III
standing, they do not respond to our prudential concerns. As for tax-
payer standing, Newdow does not reside in or pay taxes to the School
District; he alleges that he pays taxes to the District only “indirectly”
through his child support payments to Banning. Brief for Respondent
Newdow 49, n. 70. That allegation does not amount to the “direct
dollars-and-cents injury” that our strict taxpayer-standing doctrine re-
quires. Doremus v. Board of Ed. of Hawthorne, 342 U. S. 429, 434 (1952).

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Rehnquist, C. J., concurring in judgment
forces 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 11–12.
To be clear, the Court does not dispute that respondent New-
dow (hereinafter respondent) satisfies the requisites of Arti-
cle III standing. But curiously the Court incorporates criti-
cism of the Court of Appeals’ Article III standing decision
into its justification for its novel prudential standing princi-
ple. 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. Sel-
din, 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 stand-
ing 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 ex-
ception 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, cou-
pled with the prudential standing prohibition on a litigant’s
raising another person’s legal rights.
First, the Court relies heavily on Ankenbrandt v. Rich-
ards, 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

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20 ELK GROVE UNIFIED SCHOOL DIST. v. NEWDOW
Rehnquist, C. J., concurring in judgment
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 rela-
tions exception to diversity jurisdiction and abstention under
Younger v. Harris, 401 U. S. 37 (1971). We reversed, con-
cluding that the domestic relations exception only applies
when a party seeks to have a district court issue “divorce,
alimony, and child custody decrees,” 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 ‘ele-
ments 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 sub-
stantial 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 fed-
eral 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 rela-
tions exception and abstention; even if it did, it would not be
applicable in this case because, on the merits, this case pre-
sents a substantial federal question that transcends the fam-
ily law issue to a greater extent than Palmore.
The domestic relations exception is not a prudential limita-
tion 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,” Anken-

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21 Cite as: 542 U. S. 1 (2004)
Rehnquist, C. J., concurring in judgment
brandt, 504 U. S., at 703. This case does not involve diver-
sity 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 constitu-
tionality of the School District’s conducting the Pledge cere-
mony, 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 (quot-
ing 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 ques-
tion . . . 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 viola-
tion] alleged.” 504 U. S., at 706. Sandra Banning and re-
spondent now share joint custody of their daughter, respond-
ent 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 fed-
eral 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 result-
ing from the mother’s interracial marriage could not justify
granting custody to the father. Contrary to the Court’s as-

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22 ELK GROVE UNIFIED SCHOOL DIST. v. NEWDOW
Rehnquist, C. J., concurring in judgment
sertion, the alleged constitutional violation, while clearly in-
volving a “substantial federal question,” did not “transcen[d]
or exis[t] apart from the family law issue,” ante, at 13; it
had everything to do with the domestic relationship—“[w]e
granted certiorari to review a judgment of a state court di-
vesting a natural mother of the custody of her infant child,”
466 U. S., at 430 (emphasis added). Under the Court’s dis-
cussion today, it appears that we should have stayed out of
the “domestic dispute” in Palmore no matter how constitu-
tionally offensive the result would have been.
Finally, it seems the Court bases its new prudential stand-
ing principle, in part, on criticisms of the Court of Appeals’
construction of state law, coupled with the prudential princi-
ple prohibiting third-party standing. In the Court of Ap-
peals’ original opinion, it held unanimously that respondent
satisfied the Article III standing requirements, stating re-
spondent “has standing as a parent to challenge a practice
that interferes with his right to direct the religious edu-
cation 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. New-
dow 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 par-
ents 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
1 I note that respondent contends that he has never been a “noncusto-
dial” parent and points out that under the state court’s most recent order
he enjoys joint legal custody. Brief for Respondent Newdow 40.

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23 Cite as: 542 U. S. 1 (2004)
Rehnquist, C. J., concurring in judgment
Murga v. Petersen, 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’ interpre-
tation 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 inter-
est based on the Court’s de novo construction of Califor-
nia 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 con-
struction 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 re-
spective 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 re-
spondent “wishes to forestall his daughter’s exposure to reli-
gious 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

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24 ELK GROVE UNIFIED SCHOOL DIST. v. NEWDOW
Rehnquist, C. J., concurring in judgment
school when he and Banning disagree.” Ante, at 17. As
alleged by respondent and as recognized by the Court of Ap-
peals, 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 Cali-
fornia law, Banning’s “veto power” does not override re-
spondent’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 dic-
tate 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 cer-
emony 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 there-
under), the daughter is not the source of respondent’s stand-
ing; 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
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] de-
prived under California law of the right to sue as next friend.” Ante,
at 17. The same Superior Court that determined that respondent could
not sue as next friend stated:

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Rehnquist, C. J., concurring in judgment
Appeals’ Article III standing decision and the prudential
prohibition on third-party standing provide no basis for de-
nying respondent standing.
Although the Court may have succeeded in confining this
novel principle almost narrowly enough to be, like the pro-
verbial excursion ticket—good for this day only—our doc-
trine 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, for-
mer 36 U. S. C. § 1972. Congress amended the Pledge to in-
clude the phrase “under God” in 1954. Act of June 14, 1954,
ch. 297, § 7, 68 Stat. 249. The amendment’s sponsor, Repre-
sentative Rabaut, said its purpose was to contrast this coun-
try’s belief in God with the Soviet Union’s embrace of athe-
ism. 100 Cong. Rec. 1700 (1954). We do not know what
“ ‘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 Respond-
ent Newdow B4.
The California court did not reject Newdow’s right as distinct from his
daughter’s, and we should not either.

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26 ELK GROVE UNIFIED SCHOOL DIST. v. NEWDOW
Rehnquist, C. J., concurring in judgment
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 de-
velopment 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 re-
cite 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 des-
tiny of the United States, for example, or that the United
States exists under God’s authority. How much consider-
ation 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 descrip-
tion of the Nation.
The phrase “under God” in the Pledge seems, as a histori-
cal 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 acknowl-
edgments 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 Sen-
ate, 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 Chancel-
lor 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.’

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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 providence of Almighty God, to obey his will, to be
grateful for his benefits, and humbly to implore his pro-
tection and favor—and whereas both Houses of Con-
gress 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 ac-
knowledging with grateful hearts the many signal fa-
vors 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 devotion to that cause for which they
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).

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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, de-
livered 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 last-
ing 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 fin-
ished with these words:
“But the right is more precious than peace, and we shall
fight for the things which we have always carried near-
est 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 na-
tions, for a universal dominion of right for such a concert
of free peoples as shall bring peace and safety to all na-
tions and make the world itself at last free. To such a
task we can dedicate our lives and our fortunes, every-
thing 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

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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, con-
cluded 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 Expedition-
ary 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 coun-
try’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 de-
clared 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)).

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All of these events strongly suggest that our national cul-
ture allows public recognition of our Nation’s religious his-
tory 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 in-
structing 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 Dis-
trict 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

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act.” Newdow v. U. S. 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 began
with an invocation and ended with a benediction, both given
by a local rabbi. The Court held that even though attend-
ance 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 exer-
cise,” id., at 598, and “a formal religious exercise,” id., at 589.
As the Court notes in its opinion, “the Pledge of Alle-
giance 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 de-
scribed in Lee. Instead, it is a declaration of belief in alle-
giance 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.” Recit-
ing 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
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 46–47
(opinion concurring in judgment). I cannot agree. Barnette involved a
board of education policy that compelled students to recite the Pledge.

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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 will-
ing 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 de-
scriptive phrase “under God” cannot possibly lead to the es-
tablishment of a religion, or anything like it.
When courts extend constitutional prohibitions beyond
their previously recognized limit, they may restrict demo-
cratic choices made by public bodies. Here, Congress pre-
scribed a Pledge of Allegiance, the State of California re-
quired patriotic observances in its schools, and the School
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. Mean-
while the expelled child [was] ‘unlawfully absent’ and [could] be proceeded
against as a delinquent. His parents or guardians [were] liable to prose-
cution, 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.

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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 cere-
mony. 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 con-
tains the descriptive phrase “under God,” is an unwarranted
extension of the Establishment Clause, an extension which
would have the unfortunate effect of prohibiting a commend-
able patriotic observance.
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 Fed-
eral Courts of Appeals in matters that involve the interpre-
tation 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 Vil-
lage School Dist. v. Grumet, 512 U. S. 687, 720 (1994) (con-
curring opinion). When a court confronts a challenge to

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government-sponsored speech or displays, I continue to be-
lieve that the endorsement test “captures the essential com-
mand of the Establishment Clause, namely, that government
must not make a person’s religious beliefs relevant to his or
her standing in the political community by conveying a mes-
sage ‘that religion or a particular religious belief is favored
or preferred.’ ” County of Allegheny v. American Civil
Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 573,
627 (1989) (opinion concurring in part and concurring in judg-
ment) (quoting Wallace v. Jaffree, 472 U. S. 38, 70 (1985)
(O’Connor, J., concurring in judgment)). In that context,
I repeatedly have applied the endorsement test, Capitol
Square Review and Advisory Bd. v. Pinette, 515 U. S. 753,
772–773 (1995) (opinion concurring in part and concurring in
judgment) (display of a cross in a plaza next to state capitol);
Allegheny, supra, at 625 (display of creche in county court-
house and menorah outside city and county buildings); Wal-
lace, supra, at 69 (statute authorizing a meditative moment
of silence in classrooms); Lynch v. Donnelly, 465 U. S. 668,
688 (1984) (O’Connor, J., concurring) (inclusion of Nativity
scene in city government’s Christmas display), and I would
do so again here.
Endorsement, I have explained, “sends a message to non-
adherents that they are outsiders, not full members of the
political community, and an accompanying message to adher-
ents that they are insiders, favored members of the political
community.” Ibid. In order to decide whether endorse-
ment 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 ob-
server. Pinette, 515 U. S., at 772 (internal quotation marks
omitted). Given the dizzying religious heterogeneity of our

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Nation, adopting a subjective approach would reduce the test
to an absurdity. Nearly any government action could be
overturned as a violation of the Establishment Clause if a
“heckler’s veto” sufficed to show that its message was one of
endorsement. See id., at 780 (“There is always someone
who, with a particular quantum of knowledge, reasonably
might perceive a particular action as an endorsement of reli-
gion”). Second, because the “reasonable observer” must
embody a community ideal of social judgment, as well as ra-
tional judgment, the test does not evaluate a practice in iso-
lation from its origins and context. Instead, the reasonable
observer must be deemed aware of the history of the conduct
in question, and must understand its place in our Nation’s
cultural landscape. See id., at 781.
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 reli-
gious belief, they are more properly understood as employ-
ing 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, mot-

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toes, and oaths.* Eradicating such references would sever
ties to a history that sustains this Nation even today. See
Allegheny, supra, at 623 (declining to draw lines that would
“sweep away all government recognition and acknowledg-
ment of the role of religion in the lives of our citizens”).
Facially religious references can serve other valuable pur-
poses 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 en-
couraging 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 pro-
nouncements with references to God and invocations of di-
vine assistance. Such references can serve to solemnize an
occasion instead of to invoke divine provenance. The rea-
sonable observer discussed above, fully aware of our national
history and the origins of such practices, would not perceive
these acknowledgments as signifying a government endorse-
ment 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
*Note, for example, the following state mottoes: Arizona (“God En-
riches”); Colorado (“Nothing without Providence”); Connecticut (“He Who
Transplanted Still Sustains”); Florida (“In God We Trust”); Ohio (“With
God All Things Are Possible”); and South Dakota (“Under God the People
Rule”). Arizona, Colorado, and Florida have placed their mottoes on their
state seals, and the mottoes of Connecticut and South Dakota appear on
the flags of those States as well. Georgia’s newly redesigned flag includes
the motto “In God We Trust.” The oaths of judicial office, citizenship,
and military and civil service all end with the (optional) phrase “[S]o help
me God.” See 28 U. S. C. § 453; 5 U. S. C. § 3331; 10 U. S. C. § 502; 8 CFR
§ 337.1 (2004). Many of our patriotic songs contain overt or implicit refer-
ences to the divine, among them: America (“Protect us by thy might, great
God our King”); America the Beautiful (“God shed his grace on thee”); and
God bless America.

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to ignore them. Given the values that the Establishment
Clause was meant to serve, however, I believe that govern-
ment can, in a discrete category of cases, acknowledge or
refer to the divine without offending the Constitution. This
category of “ceremonial deism” most clearly encompasses
such things as the national motto (“In God We Trust”), reli-
gious references in traditional patriotic songs such as The
Star-Spangled Banner, and the words with which the Mar-
shal of this Court opens each of its sessions (“God save the
United States and this honorable Court”). See Allegheny,
492 U. S., at 630 (O’Connor, J., concurring in part and con-
curring in judgment). These references are not minor tres-
passes upon the Establishment Clause to which I turn a
blind eye. Instead, their history, character, and context pre-
vent them from being constitutional violations at all.
This case requires us to determine whether the appear-
ance 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 pur-
poses. 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 per-
sons 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 en-
dorsements because the reasonable observer cannot be pre-
sumed to be fully familiar with their origins. As a result,
in examining whether a given practice constitutes an in-
stance of ceremonial deism, its “history and ubiquity” will be
of great importance. As I explained in Allegheny, supra,
at 630–631:

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“Under the endorsement test, the ‘history and ubiquity’
of a practice is relevant not because it creates an ‘artifi-
cial exception’ from that test. On the contrary, the ‘his-
tory and ubiquity’ of a practice is relevant because it
provides part of the context in which a reasonable ob-
server evaluates whether a challenged governmental
practice conveys a message of endorsement of religion.”
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 heterogene-
ity 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 lead-
ing 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 exist-
ence 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 engen-
dering significant controversy. In Lynch, where we evalu-
ated 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” de-
spite 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

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challenge it as an impermissible establishment of religion.
See Sherman v. Community Consol. School Dist. 21, 980
F. 2d 437 (CA7 1992); Smith v. Denny, 280 F. Supp. 651 (ED
Cal. 1968). The citizens of this Nation have been neither
timid nor unimaginative in challenging government practices
as forbidden “establishments” of religion. See, e. g., Altman
v. Bedford Central School Dist., 245 F. 3d 49 (CA2 2001)
(challenging, among other things, reading of a story of the
Hindu deity Ganesha in a fourth-grade classroom); Alvarado
v. San Jose, 94 F. 3d 1223 (CA9 1996) (challenge to use of a
sculpture of the Aztec deity Quetzalcoatl to commemorate
Mexican contributions to city culture); Peloza v. Capistrano
Unified School Dist., 37 F. 3d 517 (CA9 1994) (high school
biology teacher’s challenge to requirement that he teach the
concept of evolution); Fleischfresser v. Directors of School
Dist. 200, 15 F. 3d 680 (CA7 1994) (challenge to school supple-
mental reading program that included works of fantasy in-
volving witches, goblins, and Halloween); United States v.
Allen, 760 F. 2d 447, 449 (CA2 1985) (challenge to conviction
for vandalism of B–52 bomber, based on theory that
property-protection statute established a “ ‘national religion
of nuclearism . . . in which the bomb is the new source of
salvation’ ”); Grove v. Mead School Dist. No. 354, 753 F. 2d
1528 (CA9 1985) (challenge to use of The Learning Tree, by
Gordon Parks, in high school English literature class); Crow-
ley v. Smithsonian Inst., 636 F. 2d 738 (CADC 1980) (chal-
lenge to museum display that explained the concept of evolu-
tion). Given the vigor and creativity of such challenges,
I find it telling that so little ire has been directed at the
Pledge.
Absence of worship or prayer
“[O]ne of the greatest dangers to the freedom of the indi-
vidual 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.”

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Engel v. Vitale, 370 U. S. 421, 429 (1962). Because of this
principle, only in the most extraordinary circumstances could
actual worship or prayer be defended as ceremonial deism.
We have upheld only one such prayer against Establishment
Clause challenge, and it was supported by an extremely long
and unambiguous history. See Marsh v. Chambers, 463
U. S. 783 (1983) (upholding Nebraska Legislature’s 128-year-
old practice of opening its sessions with a prayer offered by
a chaplain). Any statement that has as its purpose placing
the speaker or listener in a penitent state of mind, or that is
intended to create a spiritual communion or invoke divine
aid, strays from the legitimate secular purposes of solemniz-
ing an event and recognizing a shared religious history.
Santa Fe Independent School Dist. v. Doe, 530 U. S. 290, 309
(2000) (“[T]he use of an invocation to foster . . . solemnity
is impermissible when, in actuality, it constitutes [state-
sponsored] prayer”).
Of course, any statement can be imbued by a speaker or
listener with the qualities of prayer. But, as I have ex-
plained, the relevant viewpoint is that of a reasonable ob-
server, fully cognizant of the history, ubiquity, and context
of the practice in question. Such an observer could not con-
clude that reciting the Pledge, including the phrase “under
God,” constitutes an instance of worship. I know of no reli-
gion that incorporates the Pledge into its canon, nor one that
would count the Pledge as a meaningful expression of reli-
gious faith. Even if taken literally, the phrase is merely de-
scriptive; 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 (de-
scribing prayer as “a solemn avowal of divine faith and sup-
plication 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 re-

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41 Cite as: 542 U. S. 1 (2004)
O’Connor, J., concurring in judgment
fers to “appropriate patriotic exercises.” Cal. Educ. Code
Ann. § 52720 (West 1989). Petitioner school district also em-
ploys teachers, not chaplains or religious instructors, to lead
its students’ exercise; this serves as a further indication that
it does not treat the Pledge as a prayer. Cf. Lee v. Weis-
man, 505 U. S. 577, 594 (1992) (reasoning that a graduation
benediction could not be construed as a de minimis religious
exercise without offending the rabbi who offered it).
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., 2–3 (1954). But
their intentions cannot, on their own, decide our inquiry.
First of all, those legislators also had permissible secular ob-
jectives in mind—they meant, for example, to acknowledge
the religious origins of our Nation’s belief in the “individual-
ity and the dignity of the human being.” Id., at 1. Sec-
ond—and more critically—the subsequent social and cultural
history of the Pledge shows that its original secular charac-
ter 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 neverthe-
less “retai[n] the la[w] for the permissible purpose of further-
ing 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 contin-
ued 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 refer-
ence to God in the Pledge might be permissible because it
has “lost through rote repetition any significant religious
content”).

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42 ELK GROVE UNIFIED SCHOOL DIST. v. NEWDOW
O’Connor, J., concurring in judgment
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 nonreli-
gious, the same cannot be said of instances “where the en-
dorsement 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 in-
stead acknowledges religion in a general way: a simple refer-
ence to a generic “God.” Of course, some religions—Bud-
dhism, 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,” con-
ceived and added at a time when our national religious diver-
sity 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 indi-
vidual religious sect or belief system.
Minimal religious content
A final factor that makes the Pledge an instance of ceremo-
nial 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

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43 Cite as: 542 U. S. 1 (2004)
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pervasive. See, e. g., Weisman, supra, at 581–582 (prayers
involving repeated thanks to God and requests for blessings).
Of course, a ceremony cannot avoid Establishment Clause
scrutiny simply by avoiding an explicit mention of God. See
Wallace v. Jaffree, 472 U. S. 38 (1985) (invalidating Alabama
statute providing moment of silence for meditation or volun-
tary prayer). But the brevity of a reference to religion or
to God in a ceremonial exercise can be important for several
reasons. First, it tends to confirm that the reference is
being used to acknowledge religion or to solemnize an event
rather than to endorse religion in any way. Second, it
makes it easier for those participants who wish to “opt out”
of language they find offensive to do so without having to
reject the ceremony entirely. And third, it tends to limit
the ability of government to express a preference for one
religious sect over another.
The reference to “God” in the Pledge of Allegiance quali-
fies as a minimal reference to religion; Newdow’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 them-
selves 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 ob-
server, 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).

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44 ELK GROVE UNIFIED SCHOOL DIST. v. NEWDOW
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The coercion test provides that, “at a minimum, . . . gov-
ernment may not coerce anyone to support or participate
in religion or its exercise, or otherwise act in a way which
‘establishes a [state] religion or religious faith, or tends to
do so.’ ” Id., at 587 (quoting Lynch, 465 U. S., at 678). Any
coercion that persuades an onlooker to participate in an act
of ceremonial deism is inconsequential, as an Establishment
Clause matter, because such acts are simply not religious in
character. As a result, symbolic references to religion that
qualify as instances of ceremonial deism will pass the coer-
cion test as well as the endorsement test. This is not to say,
however, that government could overtly coerce a person to
participate in an act of ceremonial deism. Our cardinal free-
dom is one of belief; leaders in this Nation cannot force us to
proclaim our allegiance to any creed, whether it be religious,
philosophic, or political. That principle found eloquent ex-
pression in a case involving the Pledge itself, even before it
contained the words to which Newdow now objects. See
West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 642 (1943)
(Jackson, J.). The compulsion of which Justice Jackson was
concerned, however, was of the direct sort—the Constitution
does not guarantee citizens a right entirely to avoid ideas
with which they disagree. It would betray its own princi-
ples if it did; no robust democracy insulates its citizens from
views that they might find novel or even inflammatory.
* * *
Michael Newdow’s challenge to petitioner school district’s
policy is a well-intentioned one, but his distaste for the refer-
ence 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

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45 Cite as: 542 U. S. 1 (2004)
Thomas, J., concurring in judgment
commitment to religious freedom so as to sever our ties to
the traditions developed to honor it.
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 con-
strain state action under the Fourteenth Amendment.” Zel-
man 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.1
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 fed-
eralism provision, which, for this reason, resists incorpora-
1 This is by no means a novel observation. See, e. g., Rosenberger v.
Rector and Visitors of Univ. of Va., 515 U. S. 819, 861 (1995) (Thomas, J.,
concurring) (noting that “our Establishment Clause jurisprudence is in
hopeless disarray”); Lamb’s Chapel v. Center Moriches Union Free School
Dist., 508 U. S. 384, 398–401 (1993) (Scalia, J., concurring in judgment).
We have selectively invoked particular tests, such as the “Lemon test,”
Lemon v. Kurtzman, 403 U. S. 602 (1971), with predictable outcomes.
See, e. g., Lamb’s Chapel, supra, at 398–401 (Scalia, J., concurring in
judgment). Our jurisprudential confusion has led to results that can only
be described as silly. In County of Allegheny v. American Civil Liber-
ties Union, Greater Pittsburgh Chapter, 492 U. S. 573 (1989), for example,
the Court distinguished between a creche on the one hand and an 18-foot
Chanukah menorah placed near a 45-foot Christmas tree on the other.
The Court held that the first display violated the Establishment Clause
but that the second did not.

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46 ELK GROVE UNIFIED SCHOOL DIST. v. NEWDOW
Thomas, J., concurring in judgment
tion. Moreover, as I will explain, the Pledge policy is not
implicated by any sensible incorporation of the Establish-
ment Clause, which would probably cover little more than
the Free Exercise Clause.
I
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 elemen-
tary and secondary public schools.” 505 U. S., at 592. It
brushed aside both the fact that the students were not re-
quired to attend the graduation, see id., at 586 (asserting
that student “attendance and participation in” the gradua-
tion 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 gradu-
ation 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 par-
ticipation 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 at-
tend graduation and “to stand as a group or, at least, main-
tain respectful silence during the invocation and benedic-
tion,” 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.

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Moreover, this case is more troubling than Lee with re-
spect to both kinds of “coercion.” First, although students
may feel “peer pressure” to attend their graduations, the
pressure here is far less subtle: Students are actually com-
pelled (that is, by law, and not merely “in a fair and real
sense,” id., at 586) to attend school. See also School Dist.
of Abington Township v. Schempp, 374 U. S. 203, 223 (1963).
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, dissent-
ers can refuse to pledge, and this refusal would be clear to
onlookers.2 That is, students have a theoretical means of
opting out of the exercise. But as Lee indicated: “Research
in psychology supports the common assumption that adoles-
cents are often susceptible to pressure from their peers to-
wards conformity . . . .” 505 U. S., at 593–594. On Lee’s
reasoning, Barnette’s protection is illusory, for government
officials can allow children to recite the Pledge and let peer
pressure take its natural and predictable course. Further,
even if we assume that sitting in respectful silence could be
mistaken for assent to or participation in a graduation
prayer, dissenting students graduating from high school are
not “coerced” to pray. At most, they are “coerced” into pos-
sibly appearing to assent to the prayer. The “coercion”
here, however, results in unwilling children actually pledg-
ing their allegiance.3
2 Of course, as Lee and subsequent cases make clear, “ ‘[l]aw reaches
past formalism.’ ” Santa Fe Independent School Dist. v. Doe, 530 U. S.
290, 311 (2000) (quoting Lee v. Weisman, 505 U. S. 577, 595 (1992)).
3 Surely the “coercion” to pledge (where failure to do so is immediately
obvious to one’s peers) is far greater than the “coercion” resulting from a
student-initiated and student-led prayer at a high school football game.
See Santa Fe Independent School Dist., supra.

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48 ELK GROVE UNIFIED SCHOOL DIST. v. NEWDOW
Thomas, J., concurring in judgment
The Chief Justice would distinguish Lee by asserting
“that the phrase ‘under God’ in the Pledge [does not] con-
ver[t] its recital into a ‘religious exercise’ of the sort de-
scribed in Lee.” Ante, at 31 (opinion concurring in judg-
ment). In Barnette, the Court addressed a state law that
compelled students to salute and pledge allegiance to the
flag. The Court described this as “compulsion of students to
declare a belief.” 319 U. S., at 631. The Pledge “require[d]
affirmation of a belief and an attitude of mind.” Id., at 633.
In its current form, reciting the Pledge entails pledging alle-
giance to “the Flag of the United States of America, and to
the Republic for which it stands, one Nation under God.” 4
U. S. C. § 4. Under Barnette, pledging allegiance is “to de-
clare a belief ” that now includes that this is “one Nation
under God.” It is difficult to see how this does not entail
an affirmation that God exists. Whether or not we classify
affirming the existence of God as a “formal religious exer-
cise” akin to prayer, it must present the same or similar con-
stitutional problems.
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 per-
son to “declare his belief in God.” Torcaso v. Watkins, 367
U. S. 488, 489 (1961); id., at 495 (“We repeat and again reaf-
firm 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,

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49 Cite as: 542 U. S. 1 (2004)
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594 (1989). See also Good News Club v. Milford Central
School, 533 U. S. 98, 126–127 (2001) (Scalia, J., concurring).
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 alle-
giance, they are legally coerced to attend school. Cf., e. g.,
Schempp, supra; Engel v. Vitale, 370 U. S. 421 (1962). Be-
cause 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.
II
I accept that the Free Exercise Clause, which clearly pro-
tects 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 Es-
tablishment 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.
A
The Establishment Clause provides that “Congress shall
make no law respecting an establishment of religion. ”

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50 ELK GROVE UNIFIED SCHOOL DIST. v. NEWDOW
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Amdt. 1. As a textual matter, this Clause probably prohib-
its Congress from establishing a national religion. But see
P. Hamburger, Separation of Church and State 106, n. 40
(2002) (citing sources). Perhaps more importantly, the
Clause made clear that Congress could not interfere with
state establishments, notwithstanding any argument that
could be made based on Congress’ power under the Neces-
sary and Proper Clause. See A. Amar, The Bill of Rights
36–39 (1998).
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 in-
terference 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 Constitu-
tion 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 incorpora-
tion of the Clause difficult to understand. The best argu-
ment in favor of incorporation would be that, by disabling
Congress from establishing a national religion, the Clause
protected an individual right, enforceable against the Fed-

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eral Government, to be free from coercive federal establish-
ments. Incorporation of this individual right, the argument
goes, makes sense. I have alluded to this possibility before.
See Zelman, supra, at 679 (Thomas, J., concurring) (“States
may pass laws that include or touch on religious matters so
long as these laws do not impede free exercise rights or any
other individual liberty interest” (emphasis added)).
But even assuming that the Establishment Clause pre-
cludes the Federal Government from establishing a national
religion, it does not follow that the Clause created or pro-
tects 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., dis-
senting). Moreover, incorporation of this putative individ-
ual 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 Estab-
lishment Clause, although it is not without irony that a con-
stitutional provision evidently designed to leave the States
free to go their own way should now have become a restric-
tion 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 Establish-
ment Clause prohibits exactly what the Establishment
Clause protected—state practices that pertain to “an estab-
lishment of religion.” At the very least, the burden of per-
suasion 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 “estab-
lishment of religion.”

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B
The traditional “establishments of religion” to which the
Establishment Clause is addressed necessarily involve actual
legal coercion:
“The coercion that was a hallmark of historical estab-
lishments of religion was coercion of religious orthodoxy
and of financial support by force of law and threat of
penalty. Typically, attendance at the state church was
required; only clergy of the official church could lawfully
perform sacraments; and dissenters, if tolerated, faced
an array of civil disabilities. L. Levy, The Establish-
ment Clause 4 (1986). Thus, for example, in the Colony
of Virginia, where the Church of England had been es-
tablished, ministers were required by law to conform to
the doctrine and rites of the Church of England; and all
persons were required to attend church and observe the
Sabbath, were tithed for the public support of Anglican
ministers, and were taxed for the costs of building and
repairing churches. Id., at 3–4.” Lee, 505 U. S., at
640–641 (Scalia, J., dissenting).
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 pres-
ent. 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 accord-
ing 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 or-
ganization that carries some measure of the authority of the
State begins to look like a traditional “religious establish-
ment,” at least when that authority can be used coercively.
See also Zorach v. Clauson, 343 U. S. 306, 319 (1952) (Black,

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Thomas, J., concurring in judgment
J., dissenting) (explaining that the Establishment Clause “in-
sure[s] that no one powerful sect or combination of sects
could use political or governmental power to punish dissent-
ers whom they could not convert to their faith” (emphasis
added)).
It is difficult to see how government practices that have
nothing to do with creating or maintaining the sort of coer-
cive state establishment described above implicate the possi-
ble liberty interest of being free from coercive state estab-
lishments. 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 prohib-
ited from doing so.” Engel, 370 U. S., at 445 (dissenting
opinion).4
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 consist-
ent with this. Legal compulsion is an inherent component
of “preferences” in this context. James Madison’s Memorial
and Remonstrance Against Religious Assessments (re-
4 It may well be the case that anything that would violate the incorpo-
rated Establishment Clause would actually violate the Free Exercise
Clause, further calling into doubt the utility of incorporating the Estab-
lishment Clause. See, e. g., A. Amar, The Bill of Rights 253–254 (1998).
Lee v. Weisman, 505 U. S. 577 (1992), could be thought of this way to the
extent that anyone might have been “coerced” into a religious exercise.
Cf. Zorach v. Clauson, 343 U. S. 306, 311 (1952) (rejecting as “obtuse rea-
soning” a free-exercise claim where “[n]o one is forced to go to the reli-
gious classroom and no religious exercise or instruction is brought to the
classrooms of the public schools”); ibid. (rejecting coercion-based Estab-
lishment Clause claim absent evidence that “teachers were using their
office to persuade or force students to take the religious instruction” (em-
phasis added)).

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54 ELK GROVE UNIFIED SCHOOL DIST. v. NEWDOW
Thomas, J., concurring in judgment
printed in Everson v. Board of Ed. of Ewing, 330 U. S. 1,
63–72 (1947) (appendix to dissent of Rutledge, J.)), which ex-
tolled the no-preference argument, concerned coercive tax-
ation to support an established religion, much as its title
implies.5 And, although “more extreme notions of the
separation of church and state [might] be attribut[able] to
Madison, many of them clearly stem from ‘arguments re-
flecting the concepts of natural law, natural rights, and the
social contract between government and a civil society,’
[R. Cord, Separation of Church and State: Historical Fact
and Current Fiction 22 (1982)], rather than the principle of
nonestablishment in the Constitution.” Rosenberger, supra,
at 856 (Thomas, J., concurring). See also Hamburger, Sepa-
ration of Church and State, at 105 (noting that Madison’s
proposed language for what became the Establishment
Clause did not reflect his more extreme views).
C
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.
5 Again, coercive government preferences might also implicate the Free
Exercise Clause and are perhaps better analyzed in that framework.