Thursday, March 25, 2004
On the pledge, the high court should duck
New River Journal
Dennis J. Callahan
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Callahan is a lawyer in Danville.
Wednesday, the Supreme Court heard oral arguments in Elk Grove v. Newdow, the pledge case. The hot-button constitutional question is whether the 1954 addition of "under God" to the Pledge of Allegiance violates the Establishment Clause of the First Amendment. The court's precedents say "yes." But given the outcry in the wake of the 9th Circuit's "yes," and several justices' conservative leanings, few predict the court will affirm that answer. The justices have a tidy "out" to avoid the constitutional question, and would serve the country well by using it.
The court could rule that Michael Newdow has no right, or "standing," to contest the constitutionality of the pledge. To use this escape hatch, the court must determine that Newdow's rights as a noncustodial parent to "expose" his child to his atheistic views do not include the right to insulate his child against the pledge contrary to the custodial parent's wishes. The court could thus stop short of ruling on the merits.
The Supreme Court would achieve a relatively harmless result were it to reverse the 9th Circuit's decision on the standing issue while expressing its doubt of the lower court's ruling on the constitutional claim. The "under God" issue would fade, unlikely to return to the court with the same force. Though "proper" litigants would soon retry the issue, federal appeals courts will have taken the justices' hint in Newdow and will hold that the pledge does not violate the Establishment Clause. The Supreme Court will simply deny requests to hear appeals that come to it in this posture, as it does in 99 percent of cases it is asked to review. The result would be a pledge that still included "under God," but without the Supreme Court's imprimatur of its constitutionality.
Modern Supreme Court interpretations of the Establishment Clause impose a neutrality principle in which the government may not "favor or endorse either religion generally over nonreligion or one religion over others." The government argues that reciting "under God" in the pledge does not endorse religion, but merely acknowledges religion's important place in our nation's heritage. The history of the "under God" legislation, however, shows the government's account to be invented, and cautions against the court putting its constitutional stamp of approval on the pledge as it now reads.
The addition of "under God" to the pledge was one of many McCarthy-era enactments meant to contrast Americans' belief in a higher power with the Soviets' "godless religion" of atheistic materialism, and to score easy political points in the process. After all, the legislation's backers argued, by simply substituting "USSR" for "USA," the pledge without "under God" could be recited by schoolchildren in Moscow addressing the hammer-and-sickle flag.
In rapid succession, Congress established a National Day of Prayer (1952) and the Prayer Room in the Capitol (1953), added "under God" to the Pledge (1954), mandated "In God We Trust" be stamped on coins (1954), and adopted the same as our national motto (1956). Does "under God" endorse religion? Upon signing the bill, President Eisenhower declared that the new pledge proclaims "the dedication of our Nation and our people to the Almighty."
Religion, the opium of the masses, has long been invoked as a means of social control, and though Eisenhower and the 1954 Congress did not invent its flip side, spiritual politics, the game is perhaps more pervasive today than it has ever been in America. In a time when assertions of unbelief are taboo in this country, it is easy to understand the political reaction to the 9th Circuit's ruling.
President Bush and every Democratic presidential candidate condemned it, as did the Senate in a unanimous resolution. Not to be outdone, more than 100 representatives posed on the Capitol steps and punctuated "under God" as they recited the pledge for the cameras.
Amid the furor, the justices could not have credibly denied review in this case, and the neutrality principle is now squarely before the court. Prudence is also a principle, however, and by denying Newdow standing to sue and stopping there, the court would do little harm to the one at stake.
±
Callahan is a lawyer in Danville.
Wednesday, the Supreme Court heard oral arguments in Elk Grove v. Newdow, the pledge case. The hot-button constitutional question is whether the 1954 addition of "under God" to the Pledge of Allegiance violates the Establishment Clause of the First Amendment. The court's precedents say "yes." But given the outcry in the wake of the 9th Circuit's "yes," and several justices' conservative leanings, few predict the court will affirm that answer. The justices have a tidy "out" to avoid the constitutional question, and would serve the country well by using it.
The court could rule that Michael Newdow has no right, or "standing," to contest the constitutionality of the pledge. To use this escape hatch, the court must determine that Newdow's rights as a noncustodial parent to "expose" his child to his atheistic views do not include the right to insulate his child against the pledge contrary to the custodial parent's wishes. The court could thus stop short of ruling on the merits.
The Supreme Court would achieve a relatively harmless result were it to reverse the 9th Circuit's decision on the standing issue while expressing its doubt of the lower court's ruling on the constitutional claim. The "under God" issue would fade, unlikely to return to the court with the same force. Though "proper" litigants would soon retry the issue, federal appeals courts will have taken the justices' hint in Newdow and will hold that the pledge does not violate the Establishment Clause. The Supreme Court will simply deny requests to hear appeals that come to it in this posture, as it does in 99 percent of cases it is asked to review. The result would be a pledge that still included "under God," but without the Supreme Court's imprimatur of its constitutionality.
Modern Supreme Court interpretations of the Establishment Clause impose a neutrality principle in which the government may not "favor or endorse either religion generally over nonreligion or one religion over others." The government argues that reciting "under God" in the pledge does not endorse religion, but merely acknowledges religion's important place in our nation's heritage. The history of the "under God" legislation, however, shows the government's account to be invented, and cautions against the court putting its constitutional stamp of approval on the pledge as it now reads.
The addition of "under God" to the pledge was one of many McCarthy-era enactments meant to contrast Americans' belief in a higher power with the Soviets' "godless religion" of atheistic materialism, and to score easy political points in the process. After all, the legislation's backers argued, by simply substituting "USSR" for "USA," the pledge without "under God" could be recited by schoolchildren in Moscow addressing the hammer-and-sickle flag.
In rapid succession, Congress established a National Day of Prayer (1952) and the Prayer Room in the Capitol (1953), added "under God" to the Pledge (1954), mandated "In God We Trust" be stamped on coins (1954), and adopted the same as our national motto (1956). Does "under God" endorse religion? Upon signing the bill, President Eisenhower declared that the new pledge proclaims "the dedication of our Nation and our people to the Almighty."
Religion, the opium of the masses, has long been invoked as a means of social control, and though Eisenhower and the 1954 Congress did not invent its flip side, spiritual politics, the game is perhaps more pervasive today than it has ever been in America. In a time when assertions of unbelief are taboo in this country, it is easy to understand the political reaction to the 9th Circuit's ruling.
President Bush and every Democratic presidential candidate condemned it, as did the Senate in a unanimous resolution. Not to be outdone, more than 100 representatives posed on the Capitol steps and punctuated "under God" as they recited the pledge for the cameras.
Amid the furor, the justices could not have credibly denied review in this case, and the neutrality principle is now squarely before the court. Prudence is also a principle, however, and by denying Newdow standing to sue and stopping there, the court would do little harm to the one at stake.
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