Other current Supreme Court cases will have more impact on the law, but none has provoked more controversy and emotion than Elk Grove Unified School Dist. v. Newdow.
That’s why all eyes were on the Court last week as Michael Newdow argued his own case before the justices.
Unless you’ve been in hibernation for the past two years, you know that Newdow is the California atheist challenging the constitutionality of the recitation of the Pledge of Allegiance with the phrase “under God” in his daughter’s classroom. He won the last round in February 2003 when the 9th U.S. Circuit Court of Appeals ruled that the school district’s practice violates the establishment clause of the First Amendment.
At the heart of the case is a key question: Is the phrase “one Nation under God” a religious affirmation or not?
For Newdow, the answer is clear. By adding the words “under God” to the pledge in 1954, he told the Court, Congress intended for schoolchildren to affirm a religious belief. That the government may not do.
The school district was equally adamant that the pledge is “not a religious act or a profession of religious belief,” but merely “descriptive of the historical ideals upon which the country was founded.”
But what does it mean to claim that affirming allegiance to “one Nation under God” has no religious meaning or significance? That’s the concern raised by 32 rabbis and ministers in an amicus brief filed in support of Newdow’s position.
“If the religious portion of the pledge is not intended as a serious affirmation of faith,” say the clergy, “then every day, government asks millions of school children to take the name of the Lord in vain …. This is just as bad from a perspective of religious liberty, and it is worse from a perspective of religious faith.”
Draining the phrase “under God” of religious content may be a stretch, but lawyers for the school district know that’s the best way to save the pledge from being ruled unconstitutional. The justices aren’t likely to disturb references to God in most government settings (they’ve even upheld legislative prayers). But they have consistently struck down anything that looks like government-sponsored religion involving a captive audience of impressionable kids in a public school.
If the justices are looking for a way to keep “under God” in the pledge (as it would appear from questions asked from the bench) they’re likely to accept the notion that pledging allegiance to “one Nation under God” is merely a patriotic act – and not a religious affirmation.
Justice David Souter, ordinarily a strong advocate of church-state separation, hinted at a way out for the Court during oral argument. He asked whether the affirmation of God in the midst of a civic exercise “is so tepid, so diluted, so far from a compulsory prayer that it should in effect be beneath the constitutional radar.”
The mood of the country suggests that the Court needs a way to finesse this issue. Although the justices like to appear above the political fray, the Court could not have failed to notice the outrage and emotion that greeted the 9th Circuit’s ruling last year. An Associated Press poll out last week indicates that 9 out of 10 Americans want the Court to leave the pledge alone.
What’s behind these huge numbers?
Some of the strongest support for the current pledge comes from Americans (mostly conservative Protestants) who see the United States as a divinely blessed “city upon a hill” – whose prosperity and freedom depend on public acknowledgement of our dependence on God. Those who hold this conviction would view removal of “under God” from the pledge as yet another sign of America’s fall from grace.
But many other supporters of keeping “under God” don’t see it as much of a religious issue. If polls are accurate, many of these folks are wary of government involvement in religion – and would likely oppose any attempt by government to endorse one religion over another.
At the same time, however, they’re attached to a patriotic vision of the United States that inseparably links God and country. That’s why the words “one Nation under God” capture for them America’s special place in history and in the world. Any attempt to change the pledge (especially by an unpopular atheist) is seen as unpatriotic.
All this puts the Court in a tough spot. Striking “under God” might be consistent with past rulings against government endorsement of religion in schools. But such a ruling would inevitably provoke widespread outrage – and might well lead to a constitutional amendment legalizing all kinds of government-sponsored religion in public schools.
History tells us that Supreme Court justices aren’t reluctant to buck popular sentiment when they think a key constitutional principle is at stake – the school-prayer rulings are the obvious example. But a majority of the current Court is unlikely to see this case as enough of a threat to the First Amendment to rule so dramatically against public opinion.
Of course, the justices could avoid the constitutional question altogether by ruling that Newdow doesn’t have standing to bring the case (since he isn’t married to his daughter’s mother and she has primary custody).
If the Court does tackle the First Amendment issue, a majority appears likely to rule that it’s constitutional for public school teachers to lead willing students in the pledge.
Incoherent? Inconsistent? Perhaps. But this molehill of a case isn’t likely to be the First Amendment mountain that these justices are willing to die on.
But for the sake of religious liberty, let’s hope that the Court keeps the ruling narrow, making it very clear that the decision doesn’t open any doors for the government to sponsor, endorse or impose religion on students in the public schools.