Politics & Policy

Supreme Sidestep

Court upholds Pledge on a technicality.

“One nation, under God, invisible….”

Perhaps we all remember the day those mysterious words we memorized by rote suddenly started to make sense. Republik. Forwichit. InDIvisible. After years of incantation, the concepts finally crystallized into a powerful statement encapsulating the core principles of our country.

One man tried to take that experience away. Michael Newdow, whose daughter attended public school in California, challenged the recitation of the pledge of allegiance as a violation of the Establishment Clause of the First Amendment because it contains the words “under God.” Today, though, public-school superintendents across the country can relax. The Supreme Court did not declare school pledge recitation unconstitutional. But it didn’t exactly settle the question either.

In the long-awaited opinion, Elk Grove Unified School District v. Newdow, the Supreme Court unanimously reversed the Ninth Circuit’s ruling that reciting “under God” in public schools violated the Constitution. (Justice Scalia did not take part in the case.) Although the justices disagreed on the reasons for reversal, they all agreed that the Ninth Circuit got it wrong.

The majority held that Michael Newdow lacked standing to bring the case. Standing is a legal term meaning that the person making a complaint before a court must have experienced harm as a direct result of the action challenged that the court has the power to redress.

Here, Newdow sued on behalf of his daughter, a public-school student. But, Newdow’s daughter is a Christian who has no objection to the pledge and the girl’s mother, who did not agree that her daughter should participate in the suit, has exclusive legal custody. Under the Supreme Court’s interpretation of California’s domestic-relations laws, Newdow has every right to instruct his own child about his religious beliefs, but he does not have “a right to dictate to others what they may and may not say to his child respecting religion.” So, because the Supreme Court found that Newdow lacked the legal authority to make the constitutional argument, it dismissed the entire case.

Chief Justice Rehnquist, Justice O’Connor, and Justice Thomas would have found the recitation of the pledge constitutional, including the words under God. As the chief correctly observes, the mere presence of the words “under God” is not a religious exercise.

The Supreme Court has repeatedly said that mere mentions of God in a patriotic context, such as “In God We Trust” on the currency or “God Save the United States and this Honorable Court,” differ from prayer and Bible reading–quintessential religious exercises. And, from the time of the Founding, our presidents have regularly invoked God in official speeches. Even Justice Brennan, that great champion of separation of church and state, stated in a concurring opinion to Abington v. Schempp, a case finding a school’s daily Bible reading unconstitutional, that

The reference to divinity in the revised pledge of allegiance, for example, may merely recognize the historical fact that our Nation was believed to have been founded “under God.” Thus reciting the pledge may be no more of a religious exercise than the reading aloud of Lincoln’s Gettysburg Address, which contains an allusion to the same historical fact.

The “under God” question turns on coercion versus exposure. No one may coerce public-school children to recite the pledge–the Supreme Court said that was unconstitutional back in 1943 in West Virginia State Board of Education v. Barnette. The Supreme Court has also held on several occasions that forcing public-school children to participate in prayer or Bible reading violates the Establishment Clause. But here, the question is simply whether a public school may expose the child to the words “under God” in the pledge while the child stands silently during the objectionable portion. If we allow ceremonial religious expression in other contexts, the pledge should be treated the same.

So, for now, school children may continue struggling to decipher “liberty and justiss frall” each morning. But, given Newdow’s success in the Ninth Circuit, we’ve not seen the last of this issue. By dismissing the case on a technicality, the Court has left the door open for another challenge, and another challenger will no doubt emerge. In a country that espouses “liberty and justice for all,” eradicating even bare mentions of God by the state seems an unreasonable restraint.

Susanna Dokupil is an attorney and writer in Houston. She has a M.A. in church-state studies from Baylor University.

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