There has been much anticipation, and trepidation, regarding the U.S. Supreme Court's decision in the case from California raising the question of whether it is constitutional to require children pledging allegiance to the flag to also pledge allegiance to "one nation under God." The "under God" phrase was added during the Cold War for the explicit purpose of affirming America's religiosity as against the atheism of the Soviet Union.
The argument that this is unconstitutional is fairly straightforward, as I noted on an earlier occasion invoking my colleague Douglas Laycock. (Laycock is the leading academic authority on the law of religious liberty in the U.S., and primary author of, among other things, the Religious Freedom Restoration Act [which tried to enhance religious liberty protection beyond what the Supreme Court provides], as well as the brief on behalf of clergy arguing that the inclusion of 'under God' in the pledge was unconstitutional.) Laycock explains:
"In the Pledge of Allegiance, we ask every child in the public schools in America every morning for a personal profession of faith. You don't have to take out your coin and read and meditate on 'In God We Trust.' You don't have to pay any attention when the politician is talking, and lots of us don't. But this asks for a personal affirmation: I pledge allegiance to one nation under God. Now if God does not exist, or if I believe that God does not exist, then that isn't one nation under God. We can't have a nation under God unless there is a God....It's a pretty generic concept of God, and it's comfortable for a lot of people. But we may overestimate how many people. The largest private opinion polls have about 15 percent of the population not subscribing to any monotheistic conception of God. Who is in that 15 percent? Buddhist and other non-theists, Hindus and other polytheists, those with no religion, atheist, agnostic, humanist, ethical culturalists. That's 15 percent of the population, with 7.2 million children in public schools who are being asked to personally affirm every morning a religious belief that is different from the religious belief that is taught or held in their home and by their parents. And it is the personal affirmation request in the Pledge, it seems to me, that makes the Pledge unique. It is different from all the other kinds of ceremonial deism that go on in the country."
As I added on the earlier occasion:
"Everyone who isn't a shill for theocracy knows that Laycock is right. Yet--and this is the truly remarkable part--everyone (including Laycock) knows that the Supreme Court will uphold the requirement that those who want to profess loyalty to the nation must do so to a nation 'under God.' This, by itself, could be a case study in the intellectual bankruptcy of American constitutional law. But putting that aside, the only real question now is how much damage the Supreme Court will do to the separation of church and state in the course of finding some tortured rationale for allowing the federal government to require every schoolchild to affirm the supremacy of the deity in order to affirm his or her patriotism. If we're lucky, the damage will be minimal. If we're not lucky..."
Well, it turns out we were lucky. The Court has decided (the full opinions are here)--sort of--by dodging the Establishment Clause question altogether, and finding that Michael Newdow, the parent who challenged the Pledge in the first place, lacked standing to sue because he is the divorced, non-custodial parent of the affected child. As a consequence, the Pledge remains as it is, since the 9th Circuit shouldn't have decided the case in the first place.
So, happily, the opinion does no damage to Establishment Clause jurisprudence (which is a big enough mess already), and, at the same time, permits the Court to avoid a pointless, election-year firestorm over religion, that would only help the current criminal occupants of the White House.
There's some encouraging news in this decision for those of us worried about the ambitions of the aspiring theocrats in the current Administration. The majority that opted for the "no standing" argument almost certainly concurred with the Laycock argument, and the original 9th Circuit argument, about the unconstitutionality of "under God" in the Pledge--that's why they opted for the procedural out. (As Chief Justice Rehnquist points out in dissenting from that portion of the majority's decision, it would have been easy enough to have reached the substantive issue, and bypass the standing issue. Note that Rehnquist concurred in the outcome only because the result of the Court's finding that Newdow had no standing was, as noted, that the original 9th Circuit decision was reversed.)
This majority included four Justices who are predictable friends of religious minorities and the protections they are afforded by the Establishment Clause: Stevens, Breyer, Ginsburg, and Souter. But, importantly, it also included Kennedy, whose track record is more mixed, but his opting for the procedural out suggests that he drew the right conclusion on the substantive merits.
Predictably, Rehnquist and Thomas thought the inclusion of "under God" in the Pledge was constitutional, and O'Connor, sadly, joined Rehnquist in this conclusion. (Their arguments don't bear much examination--it is a variation on the ever popular "since we've let slide the imposition of religion in public life on all these other occasions, we should let it slide now" argument, that always comes up on occasions like this.) Thomas, in solidifying his status on the lunatic fringe, argues that the Establishment Clause shouldn't even apply to the states.
Just to be clear: as a matter of constitutional law, there are good legal arguments, as usually happens in these cases, on both sides of the question. Laycock "gets it right" and the theocrats "get it wrong" precisely in the sense that theocracy is an evil to be avoided, and the protection of a secular public sphere an unqualified good. But that is a moral and political judgment, not a legal one.
Meanwhile, corporate law expert Stephen Bainbridge at UCLA--fresh from opining on international law--has now extended his insights to constitutional law:
"This case does illustrate why we conservatives must work hard for Bush no matter how annoyed or even disillusioned we become with him at times. We are losing the culture wars largely because of the Supreme Court's willingness to invoke the Constitution to effectuate the Justices' version of elite opinion and thereby creating what Justice Scalia calls 'a country I do not recognize.'"
The Supreme Court permits the government to mandate that anyone who wants to affirm their patriotism by pledging allegiance must do so by affirming the existence of the deity, and Stephen Bainbridge thinks the High Court isn't conservative enough.
Wow!
But in fairness to Steve, he's at least right that we should view the Supreme Court as a naked political actor in cases like this, such that a vote for Bush is a vote for more religion in public life via judicial fiat, and a vote against Bush is a vote for less by the same means.
Gimme Bainbridge on wine any day....
UPDATE: More on Professor Garnett and Mr. Buck here.
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