One Nation Kept In Suspense

Supreme Court Ducks Ruling On 'Under God' In Public School Pledge Recitations

It was one of the most closely watched church-state cases in Supreme Court history: a legal challenge to the inclusion of the phrase "under God" in public school recitations of the Pledge of Allegiance.

As the high court's 2003-04 term wound down last month, legal observers and reporters eagerly awaiting the ruling began packing the court's pressroom every Monday, a day when decisions are usually issued. Since the justices do not announce in advance which opinions they will release, those following the case simply had to show up and hope for the best.

On June 14 the decision was finally cut loose, but it proved to be something of a letdown.

Instead of a definitive decree on the constitutionality of the Pledge's religious language, the court voted 5-3 to throw out the entire legal challenge, with the majority saying the man who brought the case never had a right to sue to begin with. After two years of controversy and often highly emotional debate, the headline-capturing Elk Grove Unified School District v. Newdow case evaporated in an instant.

The court majority held that Michael A. Newdow, a Sacramento emergency room physician who brought the challenge on behalf of his daughter, lacked the legal right to file the lawsuit. The majority noted that Newdow, who never married the girl's mother, is not the child's primary caregiver and has only partial custody. According to the high court, that wasn't enough to ensure Newdow his day in court.

"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," wrote Justice John Paul Stevens.

Stevens confined his 15-page opinion entirely to the issue of Newdow's right to sue. Because he and four other justices concluded that Newdow did not have "standing," they saw no need to look at the meat of the issue: whether the use of "under God" in public school recitations of the Pledge violates church-state separation.

Americans United Executive Director Barry W. Lynn said he regretted that the court failed to address the issue.

"I am disappointed with the court's action," said Lynn. "Students should not feel compelled by school officials to subscribe to a particular religious belief in order to show love of country. America is increasingly diverse in matters of religion, and our public schools should reflect that diversity."

Lynn said the Pledge case raised important issues that the court should have dealt with. He added that he believes the issue will resurface sooner or later.

"The justices ducked this constitutional issue today, but it is certain to come back in the future," Lynn said.

Even though the majority bypassed the constitutional issue, three justices felt compelled to explain why they believe "under God" in the Pledge does not amount to government-sponsored religion.

The three, Chief Justice William H. Rehnquist along with Justices Sandra Day O'Connor and Clarence Thomas, argued that references to God are common in American history and thus "under God" in the Pledge does not rise to the level of a constitutional violation.

Listing examples of the use of religious language by government, Rehnquist asserted that "our national culture allows public recognition of our Nation's religious history and character." The religious reference in the Pledge, Rehnquist insisted, "is in no sense a prayer, nor an endorsement of any religion" but is merely a recognition of the assumption that the country was founded on belief in God.

"Reciting the Pledge, or listening to others recite it, is a patriotic exercise, not a religious one; participants promise fidelity to our flag and our Nation, not to any particular God, faith, or church," he wrote.

O'Connor put forth a similar argument.

"In my view," she wrote, "some references to religion in public life and government are the inevitable consequence of our Nation's origins.... It is unsurprising that a Nation founded by religious refugees and dedicated to religious freedom should find references to divinity in its symbols, songs, mottoes, and oaths. Eradicating such references would sever the ties to a history that sustains this Nation even today."

O'Connor argued that these religious references are benign examples of "ceremonial deism." The use of "under God" in the Pledge, she asserted, does not endorse a specific religion and is made in passing as part of a larger, mostly non-religious, ritual. Students who object, she noted, may remain silent when those words are spoken.

The views put forth by Rehnquist and O'Connor reflect a line of thinking, not uncommon in the federal courts, that certain types of generic and ceremonial uses of God and religion are permissible in government discourse. Thomas, however, decided to drive the argument over a cliff. He argued that the high court should have used the case to fashion a new understanding of separation of church and state. At the bottom of Thomas' academic-sounding legal jargon was a truly radical proposal: He recommended obliterating the wall of separation between church and state and allowing state governments to favor certain religions over others, even permitting them to name official religions.

According to Thomas, the First Amendment's Establishment Clause – the part of the provision that bars any law "respecting an establishment of religion" – was never intended to apply to the states. He argued that since some states had official religions at the time the Bill of Rights was adopted, the intent of the First Amendment must have been to protect those state-sponsored religions.

Flying in the face of long-settled church-state policy, Thomas wrote that while the Establishment Clause "probably prohibits Congress from establishing a national religion," it does not "purport to protect individual rights."

Thomas conceded that under the high court's existing precedents, the use of "under God" in the Pledge is constitutionally suspect. But Thomas pointed this out merely as a way of ridiculing those earlier decisions. He proposed tossing out most previous church-state rulings and beginning anew. Under Thomas' view, separation of church and state would prevent the federal government from establishing a national church and not much else. Numerous instances of government-supported religion – from "voluntary" school prayer led by teachers to taxpayer-funded schools and sectarian social services – would pass muster.

Ayesha Khan, legal director for Americans United, said she was shocked by Thomas' extremism and said the Newdow case was useful because it prodded Thomas to lay out his radical views for all to see.

"Thomas' theory explicitly countenances the establishment of religion by individual states," Khan said. "So, Alabama could, under his view, establish the Southern Baptist Church as the official state religion. It could build churches, hire and pay clergy and so on, if its state constitution allowed that. That's a grossly outdated, highly divisive view."

Khan also took issue with Thomas' claim that the Establishment Clause does not create individual rights, saying it flies in the face of at least 50 years of case law."

"Under Thomas' view, nearly every church-state case dealing with 'establishment of religion' was wrongly decided," she said. "The guy is a judicial throwback."

(No one else on the court adopted anything like Thomas' extreme view. It's impossible to say if he could have won over his closest ideological ally, Justice Antonin Scalia, because Scalia took no part in the case. He recused himself from the deliberations after comments he made about Newdow's case during a speech in Virginia came to light.)

The high court's dismissal of the lawsuit on what seemed to be a technicality to many was a disappointing ending to an often contentious issue that for two years put the country on an emotional roller-coaster ride.

The legal tussle began on June 26, 2002, when the 9th U.S. Circuit of Appeals ruled in Newdow's favor, declaring unconstitutional school-sponsored recitation of the Pledge of Allegiance with its "under God" wording.

Reaction was swift and furious. An immediate outcry erupted from the Religious Right and political leaders across the ideological spectrum. The day after the decision was handed down, 80 U.S. senators lined up on the steps of the Capitol to recite the Pledge en masse. Ninety-nine senators also voted in favor of a resolution criticizing the appeals court. The ruling also led to the introduction of several constitutional amendments designed to protect "under God" in the Pledge.

Given the hubbub, the high court's dismissal of the case can be seen to have one silver lining: Religious Right groups will no longer be able to use the controversy for partisan political purposes. Some far-right groups actually seemed to relish that idea, eager for the Supreme Court to drop another hot-button "culture war" issue on the country in the midst of what are expected to be close elections for president, the House and Senate.

Some in the Religious Right were nearly salivating at that prospect. Shortly after the 9th Circuit ruled, Religious Right political strategist and former Christian Coalition head Ralph Reed announced plans to use the issue to motivate religious conservatives in advance of the 2002 mid-term elections. Conservative groups also began blasting the decision in fund-raising mail. Any plan to duplicate those efforts prior to this year's elections has now been dashed. (See "One Nation, Easily Divisible," Church & State, July-August 2002.)

The court's action should also stop the drive for a constitutional amendment. Several "prayer and Pledge" amendments are pending in the House and Senate. Had the Supreme Court struck down the use of "under God" in the Pledge, one of them probably would have been fast-tracked in Congress. Now it's likely all will be quickly forgotten.

But that does not mean the larger issue of the constitutionality of "under God" in the Pledge is dead. The day the ruling was handed down, American Atheists, a Parsippany, N.J.-based group, issued a press release vowing to press ahead with a new case. No details were given, but the organization said the new legal effort would raise "many of the constitutional issues" in Newdow's suit.

Newdow, a non-practicing attorney who argued the case personally, also believes another legal challenge is inevitable.

"We have an unconstitutional Pledge that is still being hoisted upon children in schools, and somebody will come back and challenge it again," he told National Public Radio June 15.

But some legal scholars are wary of another case, believing it would almost certainly fail.

Vikram Amar, an expert in constitutional law at Hastings College of Law in San Francisco, told the Sacramento Bee June 15 that anyone bringing a new legal challenge faces serious obstacles. Three justices, Amar noted, are already on record as stating that they believe including "under God" in the Pledge is constitutional. That bloc could also count on Scalia to join them, he said.

"Somebody going in goes with a 4-0 handicap," Amar observed. "Four justices have sent a message, and no justice is on board in the other camp."

Other legal observers pointed out that during the oral argument, even some justices who normally support church-state separation seemed skeptical of Newdow's position. (See "'Under God' At The High Court," May 2004 Church & State.)

AU's Lynn said the organization will closely monitor future developments. Americans United filed a friend-of-the-court brief arguing that Newdow was right about the Pledge. AU also helped line up minority religious groups that filed briefs agreeing with Newdow. In addition, AU attorneys helped Newdow frame his argument.

"Students who are outside the Judeo-Christian tradition should not be pressured by their teachers to put aside their beliefs in order to show love of country," Lynn said. "The compelling issues raised by this case won't disappear because of this action by the Supreme Court."