[2] After an initial decision striking the congressionally added "under God",[2] the superseding opinion on denial of rehearing en banc was more limited, holding that compelled recitation of the language by school teachers to students was invalid.

[3] On June 14, 2004, the Supreme Court held Michael Newdow, as a noncustodial parent, did not have standing to bring the suit on his daughter's behalf.

Citing the precedent of the 2002 ruling by the Ninth Circuit Court of Appeals, Judge Karlton issued an order enjoining the school district defendants from continuing their practices of leading children in the pledge with "under God.

Michael Newdow, a Sacramento, California attorney and emergency medicine physician, filed suit in March 2000 against the Elk Grove Unified School District.

A three-judge panel of the court unanimously found Newdow had standing as a parent to challenge a practice that interferes with his right to direct the religious education of his daughter.

Fernandez asserted in his partial dissent that the religious content of the "under God" addition is so small that it is de minimis—so trivial as to be properly beneath judicial notice.

Banning said she believed her daughter would be harmed if the litigation were permitted to proceed because others might incorrectly perceive the child as sharing her father's atheist views.

On June 14, 2004, in an opinion written by Justice John Paul Stevens, five of the remaining eight justices – Stevens, Anthony Kennedy, Stephen Breyer, David Souter, and Ruth Bader Ginsburg – found Michael Newdow lacked standing to bring the case as "next friend" to his daughter, because Sandra Banning had sole legal custody of the child at the time – including exclusive authority over the girl's education.

Justice Thomas, by contrast, asserts that finding the Pledge unconstitutional is an unjustifiable expansion of the meaning of "coercion" as that term is used in legal precedent: to prohibit compelling students in a "fair and real sense" by "subtle and indirect public and peer pressure" (see, Lee v. Weisman[8]) to be prayerful, as well as prohibiting actual coercion by force of law and threat of penalty.

In a concurring opinion Justice O'Connor referenced the endorsement test and wrote: "When a court confronts a challenge to government-sponsored speech or displays, I continue to believe that the endorsement test “captures the essential command 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 message ‘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 of O’Connor, J.)