Unusual Supreme Court case #1

The Supreme Court is to decide whether the phrase "under God" in the pledge of allegiance is an endorsement of religion.

The suit was brought against the Sacramento County, California, school district by
Michael Newdow,

claiming public recitation by students violates [his] 10-year-old child's religious liberty. While legal precedent makes reciting the pledge a voluntary act, Newdow says it becomes unconstitutional for students to be forced to hear it, arguing the teacher-led recitations carry the stamp of government approval.

The Justices seemed skeptical. Chief Justice William Rehnquist said the pledge "doesn't sound anything like a prayer." Sandra Day O'Conner referred to "so many references to God" in the public arena, running down the classic list of coins and so on.

David Souter said that

even if the words "under God" represented religion "in actual practice, it's an affirmation in the mindset of a civic exercise."

Souter added the Pledge "is so tepid, so diluted, far from a compulsory prayer."

"God is so generic in this context as to be a neutral" expression of belief, continued Justice Stephen Breyer.

It seems to me that the Justices have missed - or perhaps ignored - their own point. The phrase "under God" was inserted in the pledge in 1954, specifically and avowedly to declare the US a theist nation in opposition to the official atheism of the Soviet Union. How is that not a government endorsement of religion? Indeed, the comments reflect that, when they insist that the phrase "under God" is simply "a civic exercise." The famed "wall of separation" between church and state is not only supposed to prevent government from favoring one religion over another, it's supposed to prevent government from favoring religion over non-religion.

In fact, that was the basis of two Supreme Court decisions during the Vietnam War that expanded the basis for declaring conscientious objector status in the draft. That status was available to those who showed "by religious training and belief" that they were opposed to warfare. In Seeger v. US (1965) the Court found that any belief, even if unorthodox, fit the description if it occupied the same sort of central place in a person's life that traditional religions did. In Welsh v. US (1970), the Court made explicit what was implicit in Seeger, that even philosophical and moral beliefs that were expressly non-religious could still qualify for CO status if sincerely held. To do otherwise, the Court reasoned, would be to favor one sort of belief, one based on a "higher power," over another sort, which was not. That, the Court found, was an affront to the First Amendment.

So how is it that the phrase "under God" does not offer that same kind of affront? The issue here is not whether or not a student can be forced to say it (or say the pledge at all, for that matter); they can't. The question, it seems to me, is whether a "civic exercise" that expressly favors a belief in a singular deity over nonbelief can fail to be regarded as government endorsement of religion, and whether it "sounds like a prayer" or not - you'll pardon the expression - be damned.

What the Court will do is of course unknown. Antonin "I'm here for my friends" Scalia has recused himself because he earlier expressed the opinion in a speech that it's not a matter for the courts, raising the possibility of a 4-4 tie. That would leave the decision standing in the 9th Circuit but not affect other areas. I really, really doubt that will happen, one because I don't imagine half of this crew agreeing to challenge the expression "under God" and two because if there is any chance of that, they have the easy out of a lack of legal standing on Newdow's part: He never actually adopted the girl so there is a serious and legitimate legal question of his right to sue on her behalf.

In the immediate case, what I think the Court will do is overturn the lower court decision, much to the relief of the right wing (and many liberals terrified of the notion of any other decision being used to brand them "anti-religion," no matter their actual thoughts on the case). What I think it should do is declare the phrase "under God" unconstitutional and order its removal.

And I'll say one other thing here: In one sense, despite this lengthy post, on a purely personal level it doesn't matter to me one way or the other, because I reject the pledge altogether. I do not pledge my allegiance to flags. And I do not pledge my allegiance to nation-states or the governments that run them. I pledge my allegiance to principles, to ideals, and to the people those principles and ideals are to serve. "I pledge allegiance to liberty and justice for all." Everything in between should be dumped.