From today's Supreme Court case on the issue of ELK GROVE UNIFIED SCHOOL DISTRICT AND DAVID W. GORDON, SUPERINTENDENT, PETITIONERS v. MICHAEL A. NEWDOW ET AL.
(No. 02-1624)
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from the concurring opinion by Chief Justice Rhenquist
I do not believe that the phrase "under God" in the Pledge converts its recital into a "religious exercise" of the sort described in Lee. Instead, it is a declaration of belief in allegiance and loyalty to the United States flag and the Republic that it represents. The phrase "under God" is in no sense a prayer, nor an endorsement of any religion, but a simple recognition of the fact noted in H. R. Rep. No. 1693, at 2: "From the time of our earliest history our peoples and our institutions have reflected the traditional concept that our Nation [*50] was founded on a fundamental belief in God." Reciting the Pledge, or listening to others recite it, is a patriotic exercise, not a religious one; participants promise fidelity to our flag and our Nation, not to any particular God, faith, or church. n4
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n4 JUSTICE THOMAS concludes, based partly on West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624 (1943), that Lee v. Weisman, 505 U.S. 577 (1992), coercion is present in the School District policy. Post, at 3-5 (opinion concurring in judgment). I cannot agree. Barnette involved a board of education policy that compelled students to recite the Pledge. 319 U.S., at 629. There was no opportunity to opt out, as there is in the present case. "Failure to conform [was] 'insubordination' dealt with by expulsion. Readmission [was] denied by statute until compliance. Meanwhile the expelled child [was] 'unlawfully absent' and [could] be proceeded against as a delinquent. His parents or guardians [were] liable to prosecution, and if convicted [were] subject to a fine not exceeding $ 50 and jail term not exceeding thirty days." Ibid. (footnotes omitted). I think there is a clear difference between compulsion (Barnette) and coercion (Lee). Compulsion, after Barnette, is not permissible, and it is not an issue in this case. And whatever the virtues and vices of Lee, the Court was concerned only with "formal religious exercises," 505 U.S., at 589, which the Pledge is not.
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There is no doubt that respondent is sincere in his atheism and rejection of a belief in God. But the mere fact that he disagrees with this part of the Pledge does not give him a veto power over the decision of the public schools that willing participants should pledge allegiance to the flag in the manner prescribed by Congress. There may be others who disagree, not with the phrase "under God," but with the phrase "with liberty and justice for all." But surely that would not give such objectors the right to veto the holding of such a ceremony by those willing to participate. Only if it can be said that the phrase "under God" somehow tends to the establishment of a religion in violation of the First Amendment can respondent's claim succeed, where one based on objections to "with liberty and justice for all" fails. Our cases have broadly interpreted this phrase, but none have gone anywhere near as far as the decision of the Court of Appeals in this case. The recital, in a patriotic ceremony pledging allegiance to the flag and to the Nation, of the descriptive phrase "under God" cannot possibly lead to the establishment of a religion, or anything like it.
When courts extend constitutional [*52] prohibitions beyond their previously recognized limit, they may restrict democratic choices made by public bodies. Here, Congress prescribed a Pledge of Allegiance, the State of California required patriotic observances in its schools, and the School District chose to comply by requiring teacher-led recital of the Pledge of Allegiance by willing students. Thus, we have three levels of popular government -- the national, the state, and the local -- collaborating to produce the Elk Grove ceremony. The Constitution only requires that schoolchildren be entitled to abstain from the ceremony if they chose to do so. To give the parent of such a child a sort of "heckler's veto" over a patriotic ceremony willingly participated in by other students, simply because the Pledge of Allegiance contains the descriptive phrase "under God," is an unwarranted extension of the Establishment Clause, an extension which would have the unfortunate effect of prohibiting a commendable patriotic observance.
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So not only did Michael Newdow get slapped around on his custodial standing, but Chief Justice Rhenquist actually slapped him around on the establishmentary nature of "under God." I can't say I feel sorry for him. His girl's mother filed a motion for leave citing her own legal custody of the child, which Newdow immediately turned around and dodged by saying "Well, I'm not really acting on the behalf of my daughter anymore." I find it somewhat amazing that the lower courts managed to ignore the fact that his argument essentially works against him by proudly pointing out that he has no legal standing in the case any more anyway. That issue aside, The issue of the establishmentary nature of the phrase is moot anyway because the pledge is not compulsory. The court ruled previously, as you can see in the footnote inline with the text above, that a school-led pledge of allegiance is unconstitutional if it is required. In that West Virginia case, if a student didn't participate, he was expelled for 'insubordination.' I think we can all agree that, in that case, the requirement was unconstitutional. However, in California, participation is optional. The consideration of the child's emotional welfare must come into question at some point, especially with regard to how much abuse the child takes due to his nonparticipatory stand on the issue. However, that too is almost not worth worrying about when you see the whole picture: lots of kids are made fun of for lots of reasons, and nobody presents a constitutional challenge for any of those. Essentially, if it's good enough for Rhenquist on this particular issue, it's good enough for all of us.
Farkers, however, don't seem to get this. Most of them say that the court dodged the issue; no, the court held to its constitutional duty to evaluate the case based on the legal issues that applied to it. In Federal cases, you have to establish standing in order to be able to argue a case; if you don't have standing, then the case cannot be judged one way or the other regardless of how coherently you present an argument for it. In one such case in Alabama, an inmate sentenced to death by lethal injection challenged his sentence on the basis that, if a suitable vein could not be found in his legs or ordinary insertion points in his arms, a procedure known as a 'cut down' would be used, involving making a two inch incision in his upper arm to find a vein to use there. This procedure takes place while the inmate is fully conscious and not numbed, and is barbaric and exploratory surgery at best. The justices agreed on that point, however the violation of the Eighth Amendment could not be addressed because the prisoner had already challenged his sentence in the same fashion and lost his case. Had he not, the decision probably would have gone his way. Nelson v. Campbell, 347 F.3d 910 It is clear that the courts must first ensure that the legality of the suit is intact before they address the legality of the issue at hand. This is not "dodging the issue." Newdow himself did that when he changed his stance from representing his daughter to crusading against the inclusion of the non-"religious" use of the word God. Why non-"religious"? Something you have to remember about the word religion is that it does not apply to faith directly; it only applies to the doctrine and observation of that faith. Establishment of Religion implies tying a specific observational system to the government and its procedures and literature. Indication of faith implies no such establishment, especially when you look at the rich and developed history of faith-based action in the United States and the agents of its government. Chief Justice Rhenquist's concurring opinion handily deliniates some important points in that history, should you feel curiosity's tickle (as well as indicating just how much times have changed: he cites an internet site for the lyrics of the "Star Spangled Banner").
In conclusion, the court decided correctly, and I for one applaud them in upholding their duty to act according to the law and not their own whim. The decision regarding the establishment should not have been included in the majority opinion, which would have established direct precedent. Even so, Rhenquist did well to write about the implications of the word God and its relationship to faith, not religion.
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