A majority of justices on the Supreme Court–the five who dismissed Michael Newdow’s case on a fuzzy technicality about standing–probably think that “under God” in the Pledge of Allegiance is unconstitutional, and merely thought it prudent not to unleash a whirlwind of controversy about the matter right now. Justice Thomas, one of three judges who dissented by wanting to rule on the merits of the case, explains why: The Ninth Circuit Court of Appeals had offered “a persuasive reading” of the Supreme Court’s reigning precedent, Lee v. Weisman, as the foundation of its decision to declare those words unconstitutional.
Thomas writes in dissent by explaining that Lee
was wrongly decided. His position is genuinely radical: He denies that the Establishment Clause should ever have been “incorporated”–or applied against state law through the 14th Amendment. But he still adds that “any sensible incorporation of the Establishment Clause…would probably cover little more than the Free Exercise Clause.” In Lee
, the allegation was that the individual rights of particular graduating Rhode Island high-school students were being violated by their being compelled–not by law, but by peer pressure–to stand during an invocation and benediction delivered by a rabbi. (This job rotated among local clergy.) The violation occurred because Rhode Island had, in effect, established a religion. But for Thomas, the Establishment Clause has nothing to do with individual rights–only with preventing a national establishment of religion. It is merely “a federalism provision” to protect the states from an intrusive national government. And what is called coercion in Lee
–peer pressure–is not really coercion; there is no real sense in which the law made the students stand or do anything else during the prayers. Thomas’s opinion has the merit of being honest and supported by an impressive array of scholarship. But the other members of the Court are unmoved by his criticism not only of Lee
, but of the Court’s entire record on Establishment Clause jurisprudence.
If five members of the Court might be called weasels for manipulating the law to avoid their responsibility, the other two dissenters might be called even worse. (Justice Scalia did not participate in the case.) They try to square the requirement that the words “under God” remain in public-school Pledge recitations with the reigning precedent. The only way they can do that, of course, is by explaining that those words–unlike those in the rabbi’s benediction–mean nothing worth mentioning at all. Rehnquist attempts to prove that saying those words is “not a religious exercise” and is “in no sense a prayer.”
O’Connor more elaborately explains that saying “under God” is a way “to solemnize an occasion” without having to “invoke divine provenance.” She calls such language “ceremonial deism,” which might, I guess, be distinguished from real deism. “Any religious freight,” she adds, “the words may have meant to carry originally have long since been lost.” She cites a dissent by the very liberal, strict-separationist Justice Brennan as her authority. According to Brennan, “The reference to God in the pledge might be permissible because it ‘lost through rote repetition any significant religious content.’” Such subtle thinking might bring the Lord’s Prayer back to public schools; surely its religious content has also suffered significantly through excessive rote repetition. But O’Connor’s deepest observation is that, “even if taken literally, the phrase ["under God"] is merely descriptive; it purports only to identify the United States as a Nation subject to divine authority. That cannot be seen…as an expression of individual submission to divine authority.” That seems to mean that I pledge allegiance to a nation under God, but I myself am not necessarily under my nation’s God.
The next time “under God” comes before the Court the facts will be different; the technicality about standing will not apply. Those who think that the words mean something real cannot uphold them on the basis of Lee v. Weisman, and if the words aren’t really part of that to which we pledge allegiance, they ought to go. We’d better start thinking about what the words mean and why they actually do describe our nation and its Constitution.
John Courtney Murray wrote in We Hold These Truths: “The first truth to which the American Proposition makes appeal is that landmark of Western political theory, the Declaration of Independence. It is a truth that lies beyond politics; it imparts to politics a fundamental human meaning. I mean the sovereignty of God over nations as well as over individual men. This is the principle that radically distinguishes America…from the Jacobin…tradition.” The words “under God” were introduced into the Pledge to distinguish our Constitution, and our political order, from the militant atheism of the Soviet Union. That atheism had its roots in the French revolutionaries’–the Jacobins’–effort to deny that government is limited by “a truth that lies beyond politics.”
It is possible to object that the Declaration (or the Gettysburg Address or other great American invocations of God) is not part of the Constitution. There, the words “under God” are conspicuous by their absence, and so should they be in our Pledge. Maybe Newdow would have been right had our Constitution never been amended. But don’t the religious clauses of the First Amendment–particularly the Free Exercise Clause–implicitly but clearly place us under God? What is free exercise for, if not, as James Madison himself says in his Memorial and Remonstrance, but for the discovery and performance of our duties to our Creator? American atheists, of course, can disagree about the real existence of a Creator, but they too, quite unlike the Jacobins or the Communists, are usually willing to fight and die for their freedom beyond politics that at least points, at first, in the direction of God.
–Peter Augustine Lawler is Dana Professor of Government at Berry College. He is author of Aliens in America: The Strange Truth About Our Souls.