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 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.

Judicial inactivism

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.

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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.

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:

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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.'"

It's a case that needs wider discussion (a good place to start is referenced in Thomas's opinion: Philip Hamburger's Separation of Church and State (Harvard), reviewed in a Christianity Today editorial and an Alan Wolfe Books & Culture review). But Thomas demonstrates that the Pledge case is tricky only because of the Supreme Court's muddleheadedness, not because of the Constitution:

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Through the Pledge policy, the State has not created or maintained any religious establishment, and neither has it granted government authority to an existing religion. The Pledge policy does not expose anyone to the legal coercion associated with an established religion. Further, no other free-exercise rights are at issue. It follows that religious liberty rights are not in question and that the Pledge policy fully comports with the Constitution.

Reaction so far

Some conservative Christian organizations have already responded to the Supreme Court's decision, and there's almost as much division among them as there is over at the courthouse.

"The Court's ruling on the standing issue is a very significant one because parental rights are very important," Concerned Women for America chief counsel Jan LaRue says in a press release. "While we all would have liked a ruling on the merits upholding 'under God' in the Pledge for school children, we're gratified that Chief Justice William Rehnquist and Justices Sandra Day O'Connor and Clarence Thomas took the opportunity to write separately for the purpose of saying that the Pledge as recited by schoolchildren does not violate the Constitution."

American Center for Law and Justice Chief Counsel Jay Sekulow says the Court was right to concentrate its ruling on Newdow's lack of standing. "We are pleased that the Supreme Court reached the proper conclusion in determining that Michael Newdow did not have legal standing to bring the lawsuit challenging the Pledge of Allegiance," he said. "By dismissing this case and removing the appeals court decision, the Supreme Court has removed a dark cloud that has been hanging over one of the nation's most important and cherished traditions - the ability of students across the nation to acknowledge the fact that our freedoms in this country come from God, not government."

Brian Fahling, Senior Trial Attorney for the American Family Association's Center for Law & Policy, agrees with Sekulow. "The Supreme Court merely did what the Ninth Circuit should have done long ago," he said. "While conservatives may be disappointed that the Court did not uphold the Pledge on the merits, the decision today shows a refreshing degree of restraint that has been sadly missing in recent cases addressing controversial social issues."

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One of those disappointed conservatives is Focus on the Family president James Dobson. "I am certainly pleased that the U.S. Supreme Court has overturned the decision of the 9th U.S. Circuit Court of Appeals," he said. "However, the Supreme Court does not emerge from this case the defender of America's moral and Christian heritage—in fact, it showed a lack of principle that is truly appalling. Instead of settling this question once and for all, the Court has left the nation to wonder if God's name will be found unconstitutional if another challenge is brought in a procedurally correct fashion. By refusing to rule on the substance of the case, the Supreme Court has left the door open for additional challenges to our nation's godly foundation—one which is reflected on our currency, in our government buildings—including the Supreme Court's own chamber—and in the oaths we take."

Rutherford Institute President John W. Whitehead sides with Dobson on this one. "We had hoped that the Court would set the record straight once and for all by confirming the unequivocal affirmation of thirteen Supreme Court Justices across four decades that state-led recitation of 'under God' in the Pledge of Allegiance does not violate the Establishment Clause," he said. "While we are pleased that this time-honored tradition can continue, The Rutherford Institute remains committed to standing in defense of the constitutionality of this practice should any future challenges arise."

Liberty Counsel president Mat Staver doesn't address whether the court should have found standing, and is simply content that "Schoolchildren in states covered by the Ninth Circuit can now say the entire pledge of allegiance without fear of censorship."

Former Alabama Supreme Court Chief Justice Roy Moore, now head of the Foundation for Moral Law, is so far the only one calling for legislative action. "The danger still remains, as the Supreme Court dismissed the case on a legality. If the Constitution Restoration Act 2004, were to be passed in Congress, the federal courts could never again be used to strike down the constitutionality of the Pledge of Allegiance. Congress should take action now to save the Pledge and other public acknowledgements of God."

Tomorrow, we'll round up more responses to the Court's decision (or indecision), as well as discuss the "ceremonial deism" in the Bush and Kerry campaigns, as covered in this week's Time cover section.

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News links so far on the Supreme Court case:

  • Supreme Court preserves 'God' in Pledge (Associated Press)
  • Supreme Court decides Pledge case on technicality (Reuters)
  • Pledge schmedge | The pledge fights ends with a procedural whimper and not the substantive bang all the loudmouth talk show hosts were hoping for (Andrew Cohen, CBS News)
  • Supreme Court dismisses Pledge case on technicality | Justices Do Not Decide Constitutionality of Reference to God in Pledge of Allegiance (The Washington Post)
  • Supreme Court case on Pledge is dismissed on technicality | The Supreme Court's ruling today at least temporarily preserved the phrase "one nation, under God," in the Pledge of Allegiance (The New York Times)
  • Justices uphold Pledge of Allegiance | Justices sidestep "under God" debate by ruling that a non-custodial parent can't sue. More litigation on the issue is expected (Los Angeles Times)
  • US Supreme Court rules against atheist in 'under God' battle (AFP)

Another interesting site:

  • Goldstein & Howe's SCOTUSBlog — a group weblog devoted to parsing Supreme Court news and analysis. Lyle Denniston notes that three related lawsuits in Colorado, Pennsylvania, and Virginia may force the Pledge issue again.

Related Elsewhere:

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