US top court fails to decide merits of pledge case

An atheist's attempt to remove the words "under God" from the Pledge of Allegiance failed yesterday when the US Supreme Court avoided the constitutional question and ruled he could not bring the challenge on behalf of his daughter.

The ruling in one of the most important cases of the term was based on the technicality that Californian Michael Newdow could not bring the case because he did not have legal control over the nine-year-old girl. It left open the possibility of future challenges.

The 8-0 decision overturned a controversial ruling by a US appeals court in California that reciting the phrase amounted to a violation of church-state separation.

The ruling came on Flag Day and on the 50th anniversary of the addition of the words "under God" to the pledge. The US Congress adopted the June 14, 1954, law in an effort to distinguish America's religious values and heritage from those of communism, which is atheistic.

Three court members - Chief Justice William Rehnquist and Justices Sandra Day O'Connor and Clarence Thomas - disagreed that Newdow could not bring the case.

They said they would have decided the merits of the dispute and ruled the words "under God" do not violate the Constitution.

Both supporters and opponents expressed disappointment the Supreme Court avoided the key constitutional issue. They predicted it would arise again and have to be decided.

A disappointed Newdow, an emergency room doctor who has a law degree and acted as his own attorney, said he hoped the ruling at least would spark media interest in what he called grossly unfair US child custody laws.

"I'm fighting this entire system. In a couple of months I will be in the family courts arguing that this entire system is unconstitutional," he said in a telephone interview from his home near Sacramento, California.

The girl's mother, Sandra Banning, a born-again Christian, said she had exclusive legal custody of the girl under a state court order. She supported her daughter saying the pledge and said it was not in her best interest to be part of the suit.

The court's majority opinion, written by Justice John Paul Stevens, said Newdow lacked the right to bring the challenge because Banning has sole legal custody and is authorised to exercise legal control over her daughter.

"When hard questions of domestic relations are sure to affect the outcome, the prudent course is for the federal court to stay its hand rather than reach out to resolve a weighty question of federal constitutional law," Stevens wrote.

Millions of American students every day "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."