‘Under God’
stays in Pledge of Allegiance, at least for now
By John W. Kennedy
(8/8/04)
Various proponents and opponents
of religion in the public square are disappointed that the U.S. Supreme Court
ruling on Flag Day sidestepped the issue of whether the phrase “under
God” is constitutional in the Pledge of Allegiance.
Outspoken atheist Michael A. Newdow
sued the Elk Grove (Calif.) Unified School District in 2000, claiming that
listening to the “daily indoctrination” of “religious dogma”
injured his impressionable daughter, then a kindergartener.
Instead of addressing the main
issue, five of the justices determined that Newdow lacked standing on a technicality:
The girl’s mother had “exclusive legal custody,” entitling
her to make all educational decisions. If Newdow wants to indoctrinate his
daughter with his views he can do so at home when he has custody, Justice
John Paul Stevens implied in the majority opinion.
Three other justices wrote concurring
opinions that the case should be dismissed, not because Newdow lacked standing
but because the pledge is indeed legal.
Sacramento attorney Terence J.
Cassidy, who represented the school district in the case, spent much of his
oral arguments in March noting that mother Sandra Benning had legal custody
and the right to decide whether the child heard the pledge in school. Benning,
who is a born-again Christian, told justices that her daughter volunteered
to lead the pledge in her fourth-grade classroom.
“The Supreme Court gave us
exactly what we asked for, and that is to dismiss the case on the grounds
that Mr. Newdow lacked standing,” Cassidy told PE Report. “The
court is looking at what is in the best interest of the student, not the parents.”
Newdow and Banning never married.
Christian organizations such as
the American Center for Law and Justice, the Christian Legal Society’s
Center for Law and Religious Freedom, and Concerned Women for America voiced
similar jubilation at the outcome, which reverses a 9th U.S. Circuit Court
of Appeals ruling from 2002. The ban, which impacted nine western states,
had been on hold pending the school district’s appeal to the Supreme
Court.
Yet other Christian groups wanted
a more unequivocal judgment. “You win some, you lose some, and some
get rained out,” says Kevin J. Hasson, president of the Becket Fund
for Religious Freedom in Washington, D.C. “It’s a shame the court
couldn’t unify around the same principle that has been unifying the
rest of us since the Declaration of Independence: Our rights are secure because
they come from a higher authority than the state.” Hasson authored a
friend of the court brief on behalf of the Knights of Columbus, the organization
that urged Congress to add the words “under God” to the recitation
half a century ago.
Family Research Council President
Tony Perkins, Catholic League President William Donohue, Rutherford Institute
founder John W. Whitehead, and American Family Association Center for Law
and Policy chief counsel Stephen Crampton also criticized the court for sidestepping
the real issue.
Focus on the Family founder James
C. Dobson appeared among the most frustrated. “The Supreme Court does
not emerge from this case the defender of America’s moral and Christian
heritage — in fact it showed a lack of principle that is truly appalling,”
Dobson said in a statement. “Instead of settling this question once
and for all, the court has left the nation to wonder if God’s name will
be found unconstitutional if another challenge is brought in a procedurally
correct fashion.”
Foes of the oath also found fault.
“The justices ducked this constitutional issue today, but it is certain
to come back in the future,” said Barry W. Lynn, executive director
of Americans United for Separation of Church and State in Washington, D.C.
Chief Justice William Rehnquist,
one of the three justices to issue a separate opinion, chastised the majority
for failing to rule that the pledge doesn’t violate the Establishment
Clause of the First Amendment. “Reciting the pledge, or listening to
others recite it, is a patriotic exercise, not a religious one,” Rehnquist
wrote.
Justice Clarence Thomas maintained
that saying the oath doesn’t expose children to coercion associated
with an established religion. Justice Sandra Day O’Connor wrote that
the reference to God in the pledge is merely a generic reference to “ceremonial
deism.”
However, Newdow thinks the ruling
only delays an inevitable tilt in his favor. “There are a whole bunch
of litigants looking to file in the federal courts,” Newdow told PE
Report immediately after the opinion.
Newdow views the separate opinions
indicating support for the pledge as more fodder for his side. “That
was nice of them to do that,” he says. “Now we know when we bring
the next case exactly what to say to show how their arguments are flawed.”
Yet Cassidy believes the outcome
will have a long-term positive impact. “It will be much more difficult
to bring a successful case challenging the Pledge of Allegiance with the words
‘under God’ in the wake of this decision,” he predicts.
“The majority recognize that it is a patriotic exercise that is a public
acknowledgement of the ideals our flag symbolizes.”
