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Supreme Shocker—'Under God' Stays Because of a Technicality
Supreme Court will decide whether "Under God" violates the Constitution another day.
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 ...1