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For Rehnquist, the problem of judicial activism lies with the 9th U.S. Circuit Court of Appeals' ruling that asking schoolchildren to recite "under God" during the Pledge creates a kind of state religion. "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," he said.

When courts extend constitutional prohibitions beyond their previously recognized limit, they may restrict democratic choices made by public bodies. … 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."

O'Connor referenced the "heckler's veto" problem as well. "Nearly any government action could be overturned as a violation of the Establishment Clause if a "heckler's veto" sufficed to show that its message was one of endorsement. There is always someone who, with a particular quantum of knowledge, reasonably might perceive a particular action as an endorsement of religion."

But for O'Connor, the judicial activism problem comes in forgetting history, not in misreading the Constitution. Her opinion is almost totally based in recognizing the Pledge as a form of "ceremonial deism." "Whatever the sectarian ends its authors may have had in mind, our continued repetition of the reference to 'one Nation under God' in an exclusively patriotic context has shaped the cultural significance of that phrase to conform to that context," she wrote. "Any religious freight the words may have been meant to carry originally has long since been lost." Claiming that every reference to religion is itself religious denies reality and restricts freedom, she says:

Certain ceremonial references to God and religion in our Nation are the inevitable consequence of the religious history that gave birth to our founding principles of liberty. It would be ironic indeed if this Court were to wield our constitutional commitment to religious freedom so as to sever our ties to the traditions developed to honor it.

Putting ourselves in knots to deny Newdow standing or to claim the words "under God" are wholly non-religious are ridiculous, but they're "a testament to the condition of our Establishment Clause jurisprudence," says Thomas. The 9th Circuit Court of Appeals made their anti-Pledge decision because of our 1992 ruling in Lee v. Weisman, which forbade student-led prayers at graduation. If anything, reciting the Pledge is more of a church-state violation than graduation prayer since "a prayer at graduation is a one-time event, the graduating students are almost (if not already) adults, and their parents are usually present."

Purely as a matter of Supreme Court precedent, Thomas writes, "the Pledge policy is unconstitutional." But the Pledge should still keep "under God," he says, because earlier Supreme Court church-state rulings are wrong.

There are two religion parts to the First Amendment: "Congress shall make no law [1] respecting an establishment of religion, or [2] prohibiting the free exercise thereof." The latter clause refers to individual rights, he says, but the former does not. Instead, he says, "it protects state establishments from federal interference. … As strange as it sounds, [applying the Establishment Clause to states because of the Fourteenth Amendment] prohibits exactly what the Establishment Clause protected—state practices that pertain to 'an establishment of religion.'"

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June (Web-only) 2004, Vol. 48