REHNQUIST, C. J., CONCURRING IN JUDGMENT
ELK GROVE UNIFIED SCHOOL DIST. V. NEWDOW
542 U. S. ____ (2004)
SUPREME COURT OF THE UNITED STATES
NO. 02-1624
ELK GROVE UNIFIED SCHOOL DISTRICT and DAVID W.
GORDON, SUPERINTENDENT, PETITIONERS
v. MICHAEL A. NEWDOW
et al.
on writ of certiorari to the united states court of
appeals for the ninth circuit
[June 14, 2004]
Chief Justice Rehnquist, with
whom Justice O’Connor joins, and with whom Justice Thomas joins as
to Part I, concurring in the judgment.
The Court today erects a novel
prudential standing principle in order to avoid reaching the merits
of the constitutional claim. I dissent from that ruling. On the
merits, I conclude that the Elk Grove Unified School District
(School District) policy that requires teachers to lead willing
students in reciting the Pledge of Allegiance, which includes the
words “under God,” does not violate the Establishment Clause of the
First Amendment.
I
The Court correctly notes that
“our standing jurisprudence contains two strands: Article III
standing, which enforces the Constitution’s case or controversy
requirement, see
Lujan v.
Defenders of Wildlife,
504 U. S. 555,
559–562 (1992); and prudential standing, which embodies ‘judicially
self-imposed limits on the exercise of federal jurisdiction,
[
Allen v.
Wright, 468 U. S. 737, 751 (1984)].’ ”
Ante, at 7–8. To be clear, the Court does not dispute that
respondent Newdow (hereinafter respondent) satisfies the requisites
of Article III standing. But curiously the Court incorporates
criticism of the Court of Appeals’ Article III standing decision
into its justification for its novel prudential standing principle.
The Court concludes that respondent lacks prudential standing,
under its new standing principle, to bring his suit in federal
court.
We have, in the past, judicially
self-imposed clear limits on the exercise of federal jurisdiction.
See,
e.g., Warth v.
Seldin, 422 U. S. 490, 499
(1975);
Allen v.
Wright,
468 U. S. 737, 751 (1984) (“Standing
doctrine embraces several judicially self-imposed limits on the
exercise of federal jurisdiction, such as the general prohibition
on a litigant’s raising another person’s legal rights …”). In
contrast, here is the Court’s new prudential standing principle:
“[I]t is improper for the federal courts to entertain a claim by a
plaintiff whose standing to sue is founded on family law rights
that are in dispute when prosecution of the lawsuit may have an
adverse effect on the person who is the source of the plaintiff’s
claimed standing.”
Ante, at 13. The Court loosely bases
this novel prudential standing limitation on the domestic relations
exception to diversity-of-citizenship jurisdiction pursuant to 28
U. S. C. §1332, the abstention doctrine, and criticisms of the
Court of Appeals’ construction of California state law, coupled
with the prudential standing prohibition on a litigant’s raising
another person’s legal rights.
First, the Court relies heavily on
Ankenbrandt v.
Richards, 504 U. S. 689 (1992), in
which we discussed both the domestic relations exception and the
abstention doctrine. In
Ankenbrandt, the mother of two
children sued her former spouse and his female companion on behalf
of the children, alleging physical and sexual abuse of the
children. The lower courts declined jurisdiction based on the
domestic relations exception to diversity jurisdiction and
abstention under
Younger v.
Harris, 401 U. S. 37 (1971). We
reversed, concluding that the domestic relations exception only
applies when a party seeks to have a district court issue a
“divorce, alimony, and child custody decree,”
Ankenbrandt,
504 U. S., at 704. We further held that abstention was
inappropriate because “the status of the domestic relationship
ha[d] been determined as a matter of state law, and in any event
ha[d] no bearing on the underlying torts alleged,”
id., at
706.
The Court first cites the domestic relations
exception to support its new principle. Then the Court relies on a
quote from
Ankenbrandt’s discussion of the abstention
doctrine: “We have also acknowledged that it might be appropriate
for the federal courts to decline to hear a case involving
‘elements of the domestic relationship,’
id., at 705, even
when divorce, alimony, or child custody is not strictly at issue.”
Ante, at 9–10. The Court perfunctorily states: “[T]hus,
while rare instances arise in which it is necessary to answer a
substantial federal question that transcends or exists apart from
the family law issue, see,
e.g., Palmore v.
Sidoti, 466 U. S. 429, 432–434 (1984), in
general it is appropriate for the federal courts to leave delicate
issues of domestic relations to the state courts.”
Ante,
at 9. That conclusion does not follow from
Ankenbrandt’s
discussion of the domestic relations exception and abstention; even
if it did, it would not be applicable in this case because, on the
merits, this case presents a substantial federal question that
transcends the family law issue to a greater extent than
Palmore.
The domestic relations exception is not a
prudential limitation on our federal jurisdiction. It is a limiting
construction of the statute defining federal diversity
jurisdiction, 28 U. S. C. §1332, which “divests the federal
courts of power to issue divorce, alimony, and child custody
decrees,”
Ankenbrandt, 504 U. S., at 703. This case does
not involve diversity jurisdiction, and respondent does not ask
this Court to issue a divorce, alimony, or child custody decree.
Instead it involves a substantial federal question about the
constitutionality of the School District’s conducting the pledge
ceremony, which is the source of our jurisdiction. Therefore, the
domestic relations exception to diversity jurisdiction forms no
basis for denying standing to respondent.
When we discussed abstention in
Ankenbrandt, we first noted that “[a]bstention rarely
should be invoked, because the federal courts have a ‘virtually
unflagging obligation … to exercise the jurisdiction given
them.’ ”
Id., at 705 (quoting
Colorado River
Water Conservation Dist. v.
United States, 424 U. S. 800, 817
(1976)).
Ankenbrandt’s discussion of abstention by no
means supports the proposition that only in the rare instances
where “a substantial federal question … transcends or exists apart
from the family law issue,”
ante, at 9, should federal
courts decide the federal issue. As in
Ankenbrandt, “the
status of the domestic relationship has been determined as a matter
of state law, and in any event has no bearing on the underlying
[constitutional violation] alleged.” 504 U. S., at 706. Sandra
Banning and respondent now share joint custody of their daughter,
respondent retains the right to expose his daughter to his
religious views, and the state of their domestic affairs has
nothing to do with the underlying constitutional claim. Abstention
forms no basis for denying respondent standing.
The Court cites
Palmore v.
Sidoti, 466 U. S. 429 (1984), as an example of
the exceptional case where a “substantial federal question that
transcends or exists apart from the family law issue” makes the
exercise of our jurisdiction appropriate.
Ante, at 9. In
Palmore, we granted certiorari to review a child custody
decision, and reversed the state court’s decision because we found
that the effects of racial prejudice resulting from the mother’s
interracial marriage could not justify granting custody to the
father. Contrary to the Court’s assertion, the alleged
constitutional violation, while clearly involving a “substantial
federal question,” did not “transcen[d] or exis[t] apart from the
family law issue,”
ante, at 9; it had everything to do
with the domestic relationship—“[w]e granted certiorari to review a
judgment of a state court divesting a natural mother of the
custody of her infant child,” 466 U. S., at 430 (emphasis
added). Under the Court’s discussion today, it appears that we
should have stayed out of the “domestic dispute” in
Palmore no matter how constitutionally offensive the
result would have been.
Finally, it seems the Court bases its new
prudential standing principle, in part, on criticisms of the Court
of Appeals’ construction of state law, coupled with the prudential
principle prohibiting third-party standing. In the Court of
Appeals’ original opinion, it held unanimously that respondent
satisfied the Article III standing requirements, stating respondent
“has standing as a parent to challenge a practice that interferes
with his right to direct the education of his daughter.”
Newdow v.
United States Congress, 292 F. 3d
597, 602 (CA9 2002). After Banning moved for leave to intervene,
the Court of Appeals reexamined respondent’s standing to determine
whether the parents’ court-ordered custodial arrangement altered
respondent’s standing.
Newdow v.
United States
Congress, 313 F. 3d 500 (CA9 2002). The court examined
whether respondent could assert an injury in fact by asking
whether, under California law, “noncustodial parents maintain the
right to expose and educate their children to their individual
religious views, even if those religious views contradict those of
the custodial parent.”[
Footnote
1]
Id., at 504. The Court of Appeals again unanimously
concluded that the respondent satisfied Article III standing,
despite the custody order, because he retained sufficient parental
rights under California law.
Id., at 504–505 (citing
In re Marriage of Murga v.
Peterson, 103
Cal. App. 3d 498, 163 Cal. Rptr. 79 (1980);
In re Marriage
of Mentry, 142 Cal. App. 3d 260, 190 Cal. Rptr. 843
(1983)).
The Court, contrary to the Court of Appeals’
interpretation of California case law, concludes that respondent
“requests relief that is more ambitious than that sought in
Mentry and
Murga” because he seeks to restrain
the act of a third party outside the parent-child sphere.
Ante, at 13. The Court then mischaracterizes respondent’s
alleged interest based on the Court’s
de novo construction
of California law.
The correct characterization of respondent’s
interest rests on the interpretation of state law. As the Court
recognizes,
ante, at 11, we have a “settled and firm
policy of deferring to regional courts of appeals in matters that
involve the construction of state law.”
Bowen v.
Massachusetts, 487 U. S. 879, 908
(1988). We do so “not only to render unnecessary review of their
decisions in this respect, but also to reflect our belief that
district courts and courts of appeals are better schooled in and
more able to interpret the laws of their respective States.”
Brockett v.
Spokane Arcades, Inc., 472 U. S. 491, 500
(1985) (internal quotation marks and citation omitted). In contrast
to the Court, I would defer to the Court of Appeals’ interpretation
of California law because it is our settled policy to do so, and
because I think that the Court of Appeals has the better reading of
Murga, supra, and
Mentry,
supra.
The Court does not take issue with the fact
that, under California law, respondent retains a right to influence
his daughter’s religious upbringing and to expose her to his views.
But it relies on Banning’s view of the merits of this case to
diminish respondent’s interest, stating that the respondent “wishes
to forestall his daughter’s exposure to religious ideas that her
mother, who wields a form of veto power, endorses, and to use his
parental status to challenge the influences to which his daughter
may be exposed in school when he and Banning disagree.”
Ante, at 13. As alleged by respondent and as recognized by
the Court of Appeals, respondent wishes to enjoin the School
District from endorsing a form of religion inconsistent with his
own views because he has a right to expose his daughter to those
views without the State’s placing its
imprimatur on a
particular religion. Under the Court of Appeals’ construction of
California law, Banning’s “veto power” does not override
respondent’s right to challenge the pledge ceremony.
The Court concludes that the California cases
“do not stand for the proposition that [respondent] has a right to
dictate to others what they may or may not say to his child
respecting religion.”
Ibid. Surely, under California case
law and the current custody order, respondent may not tell Banning
what she may say to their child respecting religion, and respondent
does not seek to. Just as surely, respondent cannot name his
daughter as a party to a lawsuit against Banning’s wishes. But his
claim is different: Respondent does not seek to tell just anyone
what he or she may say to his daughter, and he does not seek to
vindicate solely her rights.
Respondent asserts that the School District’s
pledge ceremony infringes his right under California law to expose
his daughter to his religious views. While she is intimately
associated with the source of respondent’s standing (the
father-daughter relationship and respondent’s rights thereunder),
the daughter
is not the source of respondent’s standing;
instead it is their relationship that provides respondent his
standing, which is clear once respondent’s interest is properly
described.[
Footnote 2] The
Court’s criticisms of the Court of Appeals’ Article III standing
decision and the prudential prohibition on third-party standing
provide no basis for denying respondent standing.
Although the Court may have succeeded in
confining this novel principle almost narrowly enough to be, like
the proverbial excursion ticket—good for this day only—our doctrine
of prudential standing should be governed by general principles,
rather than ad hoc improvisations.
II
The Pledge of Allegiance
reads:
“I pledge allegiance to the Flag of the United
States of America, and to the Republic for which it stands, one
Nation under God, indivisible, with liberty and justice for all.” 4
U. S. C. §4.
As part of an overall effort to “codify and
emphasize existing rules and customs pertaining to the display and
use of the flag of the United States of America,” see H. R.
Rep. No. 2047, 77th Cong., 2d Sess., 1 (1942); S. Rep. No. 1477,
77th Cong., 2d Sess., 1 (1942), Congress enacted the Pledge on June
22, 1942. Pub. L. 623, ch. 435, §7, 56 Stat. 380, former 36 U.
S. C. §1972. Congress amended the Pledge to include the phrase
“under God” in 1954. Act of June 14, 1954, ch. 297, §7, 68
Stat. 249. The amendment’s sponsor, Representative Rabaut, said its
purpose was to contrast this country’s belief in God with the
Soviet Union’s embrace of atheism. 100 Cong. Rec. 1700 (1954). We
do not know what other Members of Congress thought about the
purpose of the amendment. Following the decision of the Court of
Appeals in this case, Congress passed legislation that made
extensive findings about the historic role of religion in the
political development of the Nation and reaffirmed the text of the
Pledge. Act of Nov. 13, 2002, Pub. L. 107–293, §§1–2, 116 Stat.
2057–2060. To the millions of people who regularly recite the
Pledge, and who have no access to, or concern with, such
legislation or legislative history, “under God” might mean several
different things: that God has guided the destiny of the United
States, for example, or that the United States exists under God’s
authority. How much consideration anyone gives to the phrase
probably varies, since the Pledge itself is a patriotic observance
focused primarily on the flag and the Nation, and only secondarily
on the description of the Nation.
The phrase “under God” in the Pledge seems, as
a historical matter, to sum up the attitude of the Nation’s
leaders, and to manifest itself in many of our public observances.
Examples of patriotic invocations of God and official
acknowledgments of religion’s role in our Nation’s history
abound.
At George Washington’s first inauguration on
April 30, 1789, he
“stepped toward the iron rail, where he was to
receive the oath of office. The diminutive secretary of the Senate,
Samuel Otis, squeezed between the President and Chancellor
Livingston and raised up the crimson cushion with a Bible on it.
Washington put his right hand on the Bible, opened to Psalm 121:1:
‘I raise my eyes toward the hills. Whence shall my help come.’ The
Chancellor proceeded with the oath: ‘Do you solemnly swear that you
will faithfully execute the office of President of the United
States and will to the best of your ability preserve, protect and
defend the Constitution of the United States?’ The President
responded, ‘I solemnly swear,’ and repeated the oath, adding, ‘So
help me God.’ He then bent forward and kissed the Bible before
him.” M. Riccards, A Republic, If You Can Keep It: The Foundation
of the American Presidency, 1700–1800, pp. 73–74 (1987).
Later the same year, after
encouragement from Congress,[
Footnote 3] Washington issued his first Thanksgiving
proclamation, which began:
“Whereas it is the duty of all Nations to
acknowledge the problems of Almighty God, to obey His will, to be
grateful for his benefits, and humbly to implore his protection and
favor—and whereas both Houses of Congress have by their joint
Committee requested me ‘to recommend to the People of the United
States a day of public thanksgiving and prayer to be observed by
acknowledging with grateful hearts the many signal favors of
Almighty God especially by affording them an opportunity peaceably
to establish a form of government for their safety and
happiness.’ ” 4 Papers of George Washington 131: Presidential
Series (W. Abbot & D. Twohig eds. 1993).
Almost all succeeding Presidents have issued
similar Thanksgiving proclamations.
Later Presidents, at critical times in the
Nation’s history, have likewise invoked the name of God. Abraham
Lincoln, concluding his masterful Gettysburg Address in 1863, used
the very phrase “under God”:
“It is rather for us to be here dedicated to the
great task remaining before us—that from these honored dead we take
increased devotions to that cause for which they gave the last full
measure of devotion—that we here highly resolve that these dead
shall not have died in vain—that this nation, under God, shall have
a new birth of freedom—and that government of the people, by the
people, for the people, shall not perish from the earth.” 1
Documents of American History 429 (H. Commager ed. 8th ed.
1968).
Lincoln’s equally well known second inaugural
address, delivered on March 4, 1865, makes repeated references to
God, concluding with these famous words:
“With malice toward none, with charity for all,
with firmness in the right as God gives us to see the right, let us
strive on to finish the work we are in, to bind up the nation’s
wounds, to care for him who shall have borne the battle and for his
widow and his orphan, to do all which may achieve and cherish a
just and lasting peace among ourselves and with all nations.”
Id., at 443.
Woodrow Wilson appeared before
Congress in April 1917, to request a declaration of war against
Germany. He finished with these words:
“But the right is more precious than peace, and we
shall fight for the things which we have always carried nearest our
hearts,—for democracy, for the right of those who submit to
authority to have a voice in their own Governments, for the rights
and liberties of small nations, for a universal dominion of right
for such a concert of free peoples as shall bring peace and safety
to all nations and make the world itself at last free. To such a
task we can dedicate our lives and our fortunes, everything that we
are and everything that we have, with the pride of those who know
that the day has come when America is privileged to spend her blood
and her might for the principles that gave her birth and happiness
and the peace which she has treasured. God helping her, she can do
no other.” 2
id., at 132.
President Franklin Delano
Roosevelt, taking the office of the Presidency in the depths of the
Great Depression, concluded his first inaugural address with these
words: “In this dedication of a nation, we humbly ask the blessing
of God. May He protect each and every one of us! May He guide me in
the days to come!” 2
id., at 242.
General Dwight D. Eisenhower, who would
himself serve two terms as President, concluded his “Order of the
Day” to the soldiers, sailors, and airmen of the Allied
Expeditionary Force on D-Day—the day on which the Allied Forces
successfully landed on the Normandy beaches in France—with these
words: “Good Luck! And let us all beseech the blessings of Almighty
God upon this great and noble undertaking,” http://www.eisenhower.
archives.gov/dl/DDay/SoldiersSailorsAirmen.pdf (all Internet
materials as visited June 9, 2004, and available in Clerk of
Court’s case file).
The motto “In God We Trust” first appeared on
the country’s coins during the Civil War. Secretary of the Treasury
Salmon P. Chase, acting under the authority of an Act of Congress
passed in 1864, prescribed that the motto should appear on the two
cent coin. The motto was placed on more and more denominations, and
since 1938 all United States coins bear the motto. Paper currency
followed suit at a slower pace; Federal Reserve notes were so
inscribed during the decade of the 1960’s. Meanwhile, in 1956,
Congress declared that the motto of the United States would be “In
God We Trust.” Act of July 30, 1956, ch. 795, 70 Stat. 732.
Our Court Marshal’s opening proclamation
concludes with the words “ ‘God save the United States and
this honorable Court.’ ” The language goes back at least as
far as 1827. O. Smith, Early Indiana Trials and Sketches:
Reminiscences (1858) (quoted in 1 C. Warren, The Supreme Court in
United States History 469 (rev. ed. 1926)).
All of these events strongly suggest that our
national culture allows public recognition of our Nation’s
religious history and character. In the words of the House Report
that accompanied the insertion of the phrase “under God” in the
Pledge: “From the time of our earliest history our peoples and our
institutions have reflected the traditional concept that our Nation
was founded on a fundamental belief in God.” H. R. Rep. No.
1693, 83d Cong., 2d Sess., 2 (1954). Giving additional support to
this idea is our national anthem “The Star-Spangled Banner,”
adopted as such by Congress in 1931. 36 U. S. C. §301 and
Historical and Revision Notes. The last verse ends with these
words:
“Then conquer we must, when our cause it is
just,
“And this be our motto: ‘In God is our trust.’
“And the star-spangled banner in triumph shall wave
“O’er the land of the free and the home of the brave!”
http://www.bcpl.net/~etowner/anthem.html.
As pointed out by the Court,
California law requires public elementary schools to “conduc[t] …
appropriate patriotic exercises” at the beginning of the schoolday,
and notes that the “giving of the Pledge of Allegiance to the Flag
of the United States of America shall satisfy the requirements of
this section.” Cal. Educ. Code Ann. §52720 (West 1989). The School
District complies with this requirement by instructing that “[e]ach
elementary school class recite the [P]ledge of [A]llegiance to the
[F]lag once each day.” App. 149–150. Students who object on
religious (or other) grounds may abstain from the recitation.
West Virginia Bd. of Ed. v.
Barnette, 319 U. S. 624, 642 (1943) (holding
that the government may not compel school students to recite the
Pledge).
Notwithstanding the voluntary nature of the
School District policy, the Court of Appeals, by a divided vote,
held that the policy violates the Establishment Clause of the First
Amendment because it “impermissibly coerces a religious act.”
Newdow v.
United States Congress, 328 F. 3d
466, 487 (CA9 2003). To reach this result, the court relied
primarily on our decision in
Lee v.
Weisman,
505 U. S. 577 (1992). That case arose
out of a graduation ceremony for a public high school in
Providence, Rhode Island. The ceremony was begun with an
invocation, and ended with a benediction, given by a local rabbi.
The Court held that even though attendance at the ceremony was
voluntary, students who objected to the prayers would nonetheless
feel coerced to attend and to stand during each prayer. But the
Court throughout its opinion referred to the prayer as “an explicit
religious exercise,”
id., at 598, and “a formal religious
exercise,”
id., at 589.
As the Court notes in its opinion, “the Pledge
of Allegiance evolved as a common public acknowledgement of the
ideals that our flag symbolizes. Its recitation is a patriotic
exercise designed to foster national unity and pride in those
principles.”
Ante, at 2.
I do not believe that the phrase “under God”
in the Pledge converts its recital into a “religious exercise” of
the sort described in
Lee. Instead, it is a declaration of
belief in allegiance and loyalty to the United States flag and the
Republic that it represents. The phrase “under God” is in no sense
a prayer, nor an endorsement of any religion, but a simple
recognition of the fact noted in H. R. Rep. No. 1693, at 2:
“From the time of our earliest history our peoples and our
institutions have reflected the traditional concept that our Nation
was founded on a fundamental belief in God.” Reciting the Pledge,
or listening to others recite it, is a patriotic exercise, not a
religious one; participants promise fidelity to our flag and our
Nation, not to any particular God, faith, or church.[
Footnote 4]
There is no doubt that respondent is sincere
in his atheism and rejection of a belief in God. But the mere fact
that he disagrees with this part of the Pledge does not give him a
veto power over the decision of the public schools that willing
participants should pledge allegiance to the flag in the manner
prescribed by Congress. There may be others who disagree, not with
the phrase “under God,” but with the phrase “with liberty and
justice for all.” But surely that would not give such objectors the
right to veto the holding of such a ceremony by those willing to
participate. Only if it can be said that the phrase “under God”
somehow tends to the establishment of a religion in violation of
the First Amendment can respondent’s claim succeed, where one based
on objections to “with liberty and justice for all” fails. Our
cases have broadly interpreted this phrase, but none have gone
anywhere near as far as the decision of the Court of Appeals in
this case. The recital, in a patriotic ceremony pledging allegiance
to the flag and to the Nation, of the descriptive phrase “under
God” cannot possibly lead to the establishment of a religion, or
anything like it.
When courts extend constitutional prohibitions
beyond their previously recognized limit, they may restrict
democratic choices made by public bodies. Here, Congress prescribed
a Pledge of Allegiance, the State of California required patriotic
observances in its schools, and the School District chose to comply
by requiring teacher-led recital of the Pledge of Allegiance by
willing students. Thus, we have three levels of popular
government—the national, the state, and the local—collaborating to
produce the Elk Grove ceremony. The Constitution only requires that
schoolchildren be entitled to abstain from the ceremony if they
chose to do so. To give the parent of such a child a sort of
“heckler’s veto” over a patriotic ceremony willingly participated
in by other students, simply because the Pledge of Allegiance
contains the descriptive phrase “under God,” is an unwarranted
extension of the Establishment Clause, an extension which would
have the unfortunate effect of prohibiting a commendable patriotic
observance.
Footnote 1
I note that respondent contends that he has
never been a “noncustodial” parent and points out that under the
state court’s most recent order he enjoys joint legal custody.
Brief for Respondent Newdow 40.
Footnote 2
Also as properly described, it is clear that
this is not the same as a next-friend suit. The Court relies on the
fact that respondent “[was] deprived under California law of the
right to sue as next friend.”
Ante, at 14. The same
Superior Court that determined that respondent could not sue as
next friend stated:
“ ‘To the extent that by not naming her
you have … an individual right as a parent to say that, “not only
for all the children of the world but in—mine in particular, I
believe that this child—my child is being harmed,” but the child is
… not actually part of the suit, I don’t know that there’s any way
that this court could preclude that.’ ” App. to Brief for
Respondent Newdow B4.
The California court did not reject Newdow’s
right as distinct from his daughter’s, and we should not
either.
Footnote 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).
Footnote 4
Justice Thomas concludes, based partly on
West Virginia Bd. of Ed. v.
Barnette, 319 U. S. 624 (1943), that
Lee v.
Weisman, 505 U. S. 577 (1992), coercion is
present in the School District policy.
Post, at 3–5
(opinion concurring in judgment). I cannot agree.
Barnette
involved a board of education policy that compelled students to
recite the Pledge. 319 U. S., at 629. There was no opportunity to
opt out, as there is in the present case. “Failure to conform [was]
‘insubordination’ dealt with by expulsion. Readmission [was] denied
by statute until compliance. Meanwhile the expelled child [was]
‘unlawfully absent’ and [could] be proceeded against as a
delinquent. His parents or guardians [were] liable to prosecution,
and if convicted [were] subject to a fine not exceeding $50 and
jail term not exceeding thirty days.”
Ibid. (footnotes
omitted). I think there is a clear difference between compulsion
(Barnette) and coercion
(Lee). Compulsion, after
Barnette, is not permissible, and it is not an issue in
this case. And whatever the virtues and vices of
Lee, the
Court was concerned only with “formal religious exercise[s],” 505
U. S., at 589, which the Pledge is not.
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