The case of Elk Grove Unified School District and David W. Gordon, Superintendent v. Michael A. Newdow et al., 2003 revolved around the issue of whether the recitation of the Pledge of Allegiance in public schools was a violation of the U.S Constitution's First Amendment prohibition on government establishment or endorsement of religion due to its inclusion phrase "under God". The plaintiff, Michael Newdow, argued that his daughter was harmed by being compelled to listen to her classmates recite this pledge at school each day as it conflicted with their atheistic beliefs. However, in a 5-4 decision led by Justice Stevens, the Supreme Court ruled that Newdow did not have standing (the legal right) to bring this lawsuit because he did not have full custody over his child; therefore he could not represent her interests in court. This ruling effectively sidestepped addressing whether requiring students to say "under God" violated separation between church and state.

In the dissenting opinion for Elk Grove Unified School District v. Newdow, Justice Scalia recused himself and did not participate in the decision. However, Justices Rehnquist, O'Connor, and Thomas dissented from the majority's view that Michael Newdow lacked standing to challenge his daughter's school district over its policy of having students recite the Pledge of Allegiance with "under God" included. They argued that he had a sufficient interest as a parent to challenge practices affecting his child’s education. Furthermore, they disagreed with the notion that including "under God" in the pledge violated First Amendment rights by endorsing religion; rather they viewed it as an acknowledgment of America’s religious heritage which does not coerce anyone into practicing or supporting any particular faith.