In the next few weeks, the Supreme Court will decide the Newdow case, ruling on whether public-school teachers may include the words “under God” when leading students in the Pledge of Allegiance. It is by no means clear that the Court will sustain the Pledge–and even if it wanted to, precedents would make such a decision legally problematic.
In June 2002, when the Ninth Circuit Court of Appeals ruled “under God” unconstitutional in public schools, it seemed inevitable that the decision would be overturned. Soon after the ruling came down, Sen. John Kerry reportedly said on Boston television that it was “half-a**ed justice…That’s not the establishment of religion.” Congress agreed, quickly passing resolutions condemning the ruling by margins of 401-5 in the House and 99-0 in the Senate.
The justices, however, cannot be as dismissive as John Kerry and his colleagues. Over the last 20 years, the Court has generally employed two doctrines to adjudicate establishment-clause disputes: the “endorsement” test and the “coercion” test.
The endorsement test prohibits the government from explicitly endorsing religion, purportedly to keep it religiously neutral. In the context of public schooling, however, “no endorsement” quickly becomes outright hostility. Activities that a child might perceive to favor religion must be prohibited. If rigorously applied, the test requires the elimination of religious language and symbols from the classroom, including the removal of the words “under God” from the Pledge.
The coercion test forbids the state from coercing religious practice. That standard may seem narrow, but in 1992 the Court prohibited non-denominational invocations and benedictions at public-school graduations because such exercises “psychologically coerce” students to participate in a religious exercise. Applying the same rule in 2000, it struck down the Texas tradition of nondenominational prayer before high-school football games, because, it said, some fans might feel like “outsiders.”
Thus interpreted, the coercion test secures “the right not to be made uncomfortable” by others publicly expressing their religious beliefs. Like the endorsement test, its reasoning calls for the curtailment of expressions of religious sentiment in public-school settings.
To his credit, Michael Newdow–the lawyer who filed the pending litigation–studied the law and shrewdly brought the perfect case. He has backed the Court into a corner, pushing their accepted doctrines to their logical extreme.
Given its precedents, what can the Court do?
It could start by rejecting the arguments advanced by the pro-Pledge lawyers. They sought to dismiss the case by denying Newdow standing to sue. They also claimed that by long repetition the Pledge is no longer religious. “Under God,” they argued, only recalls the political philosophy of our Founding Fathers, who believed that our rights and freedom come from God.
If the Court dismisses the case on the technical grounds of standing, a new lawsuit would be filed immediately. Sooner or later, the Court will have to decide the case on its merits. It might as well do so now, and avoid another round of costly litigation.
To suggest that the phrase only harkens back to history ignores the fact that the recitation is personal and in the present tense, not to mention that there is nothing in the text of the Pledge itself to suggest that it refers to any element of American history. To say that the words have lost their meaning or that they are not religious undermines the very reason for saying them.
This leaves the Court with only two intellectually honest options.
If it insists on maintaining its precedents, it should strike down “under God” as an impermissible “endorsement” that “psychologically coerces” religious practices. The decision would create a political firestorm, but the Court has the duty to articulate a clear and consistent interpretation of the Constitution regardless of popular will.
Alternatively, the Court could “fess up” and admit that it has previously misconstrued the meaning of the First Amendment’s ban on religious establishments. The Founders meant to prohibit things like the employment and appointment of clergy by the state, limiting public office to members of the established religion, and the licensing and regulation of dissenting religious ministers. Given this background, the Court could admit that its endorsement and coercion tests have long been off the mark. It then could adopt a more historically accurate test that would allow the Pledge.
Whatever it decides, the Court should be honest. Intellectual consistency demands that it either follow its precedents and strike down “under God,” or abandon them in order to uphold the Pledge. Anything less would reveal the Court to be exercising arbitrary will, not judgment.
Anything less would be, in John Kerry’s words, “half-a**ed justice.”
–Vincent Phillip Muñoz is a Civitas Fellow at the American Enterprise Institute and an assistant professor of political science at North Carolina State University.