Flagging down a pledge

When I first mentioned the Pledge of Allegiance case back on March 24, I said I expected the Supreme Court to overrule the 9th Circuit Court of Appeals decision that found the phrase "under God" an unconstitutional establishment of religion.

However, noting that Antonin Scalia had recused himself, thereby raising the possibility of a 4-4 tie, I added that

if there is any chance of that, they have the easy out of a lack of legal standing on [plaintiff Michael] 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.

As it turns out, the Court took exactly that tack in what amounted to a "no decision" decision.

Washington (CNN, June 14) - The Supreme Court on Monday ruled that a California father could not challenge the Pledge of Allegiance, a decision that sidestepped the broader question of the separation of church and state.

The 8-0 ruling by the high court reversed a lower-court decision that teacher-led recitation of the Pledge of Allegiance in public schools is unconstitutional.

Newdow had sued the school district where his 10-year old daughter attended class, saying the inclusion of the phrase "under God" was an infringement on her First Amendment freedoms because having it recited every day in the classroom gave an imprimatur to a religious belief. The 9th Circuit agreed, prompting the Supreme Court review. But instead of actually reviewing the issue, the Court, likely terrified of the implications, punted.

What were those implications? I think - I'm not sure, but I think - it was George Will called Newdow "annoying" and "foolish," a "pest," and then said he had one thing going for him: "He's right."

And of course he was right. The original pledge, written in 1892 by a Baptist minister, had no reference to God. When Congress adopted it in 1942 as a patriotic tribute, it was without any reference to God. In fact, the phrase "under God" was not inserted into the Pledge until 1954, when Congress did it for the avowed purpose of differentiating us from "godless Communism." It was specifically intended to declare a belief in God as part of our national ethos.

Which is what made it so hilarious to see the Pledge's defenders falling all over themselves to insist that an explicit reference to God had no connection to religion, oh no, no way, it never even crossed our minds, God forbid - er, heaven forb - er, well, it just didn't. No, it's just a "civic exercise," a "platitude," one actually called it, merely an "official acknowledgment of our nation's religious heritage," Solicitor General Theodore Olson argued. Their confidence in their arguments can perhaps be seen in the fact that they gave equal weight to Newdow's questionable standing: It would seem to me that if these vociferous defenders of the current wording were so sure of the legal and Constitutional merits of their position, they would have much preferred to push the issue to its conclusion and get a definitive ruling. It may well have been their undoubted awareness that their arguments stand in direct contradiction to the history and legislative history of the Pledge that that moved them instead to make broad gestures toward an exit - and the Court's knowledge of that same fact that moved the Justices to use it.