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It's Flag Day and the 50th anniversary of the addition of "Under God" to the Pledge of Allegiance. A perfect day for the Supreme Court to rule whether asking students to say "under God" during recitations of the Pledge of Allegiance unconstitutionally supports religion.

Or not. During oral arguments, atheist Michael Newdow stole the spotlight from the "under God" issues, wowed Supreme Court analysts despite his inexperience. Today, it's still all about Newdow: without touching the Pledge issue, the justices ruled that he doesn't have enough custody of his daughter to bring the case on her behalf.

"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," Justice John Paul Stevens wrote in the majority opinion (full text in PDF, alt. PDF site, html).

But it's the "concurring" opinion that readers will find most interesting. That word concurring is a bit of a misnomer, since the three judges who signed on only agree with the majority that the case should be dismissed. They disagree strongly with just about everything else in the majority opinion.

Chief Justice William H. Rehnquist, who during oral arguments said that the merits of the case "certainly have nothing to do with domestic relations," accused the majority of chickening out. "The Court today erects a novel prudential standing principle in order to avoid reaching the merits of the constitutional claim," he wrote. "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."

Rehnquist, Sandra Day O'Connor, and Clarence Thomas say Newdow should have lost not because he didn't have the right to bring the case, but because the Pledge of Allegiance is constitutional. But even within the concurring opinion there's enough dissent that O'Connor and Thomas each wrote their own opinion in addition to signing on to that of Rehnquist.

Notably, the issue of "judicial activism" is indirectly referenced in most of the opinions. The majority opinion says it would be an improper extension of the Supreme Court's duties to rule on the Pledge's constitutionality. "The command to guard jealously and exercise rarely our power to make constitutional pronouncements requires strictest adherence when matters of great national significance are at stake," Stevens wrote.

Always we must balance "the heavy obligation to exercise jurisdiction" against the "deeply rooted" commitment "not to pass on questions of constitutionality" unless adjudication of the constitutional issue is necessary. … Long ago we observed that "the whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States."

That's true, said Rehnquist. But Newdow "does not ask this Court to issue a divorce, alimony, or child custody decree. Instead, [this case] involves a substantial federal question about the constitutionality of the School District's conducting the pledge ceremony." If we're going to leave custody matters to the local courts, Rehnquist said, let's accept what the state court ruled—Newdow has enough standing for us to consider these constitutional issues.

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June (Web-only) 2004, Vol. 48