The Supreme Court recently dodged a bullet when it dismissed the lawsuit challenging teacher-led recitations in public school of the Pledge of Allegiance. The decision, however, may mark the beginning–not the end–of the constitutional fight over the phrase “under God.” And from what the Court said, the outcome of the next round of battle is by no means clear.
All eight justices agreed to overturn the Ninth’s Circuit’s ruling that expunged “under God” from the Pledge, but five voted on procedural grounds alone. The Court’s liberal four–Justices Stevens, Souter, Breyer, and Ginsburg–along with Justice Kennedy signed on to an opinion stating that Michael Newdow, the atheist lawyer who brought the suit, lacked standing to sue. Newdow never married his daughter’s mother, and she has final authority over matters pertaining to the girl’s education. Since the mother wants her daughter to say the unamended Pledge, the Court majority dismissed Newdow’s case.
The standing doctrine allowed the majority to evade what had become obvious: that under a fair reading of the Court’s Establishment Clause precedents, “under God” is unconstitutional. Rejecting the case without reaching the merits saved the Court from extending its prior decisions to their logical outcome. It also saved the Court from taking a public beating. Polls show that around ninety percent of those asked favor leaving “under God” in the Pledge.
But poll numbers alone will not prevent another lawsuit. The Court’s inconclusive decision will likely inspire secularists to challenge the Pledge again.
If anyone can claim a moral victory from the decision, it’s those who seek to purge God from the Pledge. To dismiss the case, the majority had to invent a novel standing doctrine. The Court’s accepted practice, as Chief Justice Rehnquist made clear, is to defer to lower courts on interpretations of state standing law. To deny Newdow standing, the majority did not enforce a ridged technicality, it created a new one.
Only the chief justice, Justice O’Connor, and Justice Thomas, all of whom wrote separate concurring opinions, said “under God” passes constitutional muster. This suggests that only three sitting justices (four if we count Justice Scalia, who did not participate in the case, but whose views are well known) think that “under God” is constitutional. The other five most likely believe “under God” unconstitutional, but for various reasons would rather not announce that decision–yet.
The four most liberal justices–Stevens, Souter, Breyer, and Ginsburg–surely wanted to avoid the political fallout of striking down the Pledge. Voting their convictions would have handed President Bush a club with which to beat the drum of anti-religious “liberal judicial activism.” For them it was better to save the case for later date than to risk invigorating religious conservatives.
The same cannot be said of Reagan-appointee Justice Kennedy. Kennedy’s problem is that he developed the reasoning that led the Ninth Circuit to rule “under God” unconstitutional.
In Lee v. Weisman (1992), Kennedy wrote that school-sponsored prayers at public-school graduations violate the Establishment Clause. He stated then that when public schools ask students to stand while others invoke God, they “psychologically coerce” religious practice in violation of the Establishment Clause. No honest way exists to square Kennedy’s Lee reasoning with teacher-led recitations of the Pledge in public schools, a point made forcefully by Justice Thomas’s concurrence.
Thomas’s honesty, ironically, may encourage more litigation. He stated plainly that, “adherence to Lee would require us to strike down the Pledge policy.” Since Lee remains good law, an even stronger case now could be made against “under God.”
Justice Kennedy could be spared facing the logic of his own doctrine if lower courts follow the direction of Justice O’Connor. In her concurrence, she categorized the Pledge as “ceremonial deism.” Employing a new four-part test, O’Connor would allow state-sponsored ceremonial references to God if they are historical, not too prayerful, nonsectarian, and contain only minimal religious content. Given these conditions, O’Connor explained, no “reasonable observer” would believe the state to be “endorsing” religion. Whether O’Connor’s new doctrine is itself reasonable is another question, but lower courts could employ it to dismiss future Pledge cases.
What all this means is that come next fall everything will be back to normal. Public-school children will recite the Pledge with the phrase “under God,” and the Supreme Court will begin a new term lacking a clear or consistent doctrine of religious freedom. Any hope for a decisive ruling or for legal coherence will need to wait another year.
–Vincent Phillip Muñoz is the Civitas Fellow of Religion & Public Life at the American Enterprise Institute and an assistant professor of political science at North Carolina State University.