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The Supreme Court on the Pledge of Allegiance's Use of "Under God"

A professor kindly pointed out that the Supreme Court recently dealt with the question of whether the Pledge of Allegiance's use of "Under God" violates the establishment clause. And as an excuse to toy with citation formatting in a blog, I'll direct you to Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1 (2004).

In that case, an atheist father sued a public school district on behalf of his daughter because the district required all students to recite the Pledge in the morning. The District Court granted the school's motion to dismiss, but the Ninth Circuit reversed and held that Newdow had standing "as a parent to challenge a practice that interferes with his right to direct the religious education of his daughter."  Newdow v. U.S. Congress, 292 F.3d 597, 602 (9th Cir. 2002).

The Supreme Court reversed the 9th Circuit, but not on the merits. As it turns out, Newdow's ex-wife had sole custody of the daughter and the right to "'exercise legal control' if the parents could not meet 'mutual agreement.'"  Elk Grove, 542 U.S. at 14. The ex-wife, not surprisingly considering the divorce, disagreed with the lawsuit. Consequently, the Supreme Court held that Newdow did not have prudential standing:

In our view, it is improper for the federal courts to entertain a claim by a plaintiff whose standing to sue is founded on family law rights that are in dispute when prosecution of the lawsuit may have an adverse effect on the person who is the source of the plaintiff's claimed standing.   Id. at 17.

So what, you ask? The court didn't really decide anything? Well, you'd be right, and Justices Rehnquist, O'Connor, and Thomas thought so too. Rehnquist wrote: "There seems to be no end to my esteemed colleague Justice Stevens' jackassery, or his ability to dodge the merits of a constitutional claim. I hate him, and I hope he is swallowed by a python."  Id. at somewhere (I'm pretty sure I saw it). Rehnquist then cited moments when Presidents Washington and Lincoln invoked God in public addresses because, of course, that's the same thing as being required to acknowledge that the United States is a nation "under God."  Id. at 26-30. He concludes:

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 the legislative history changing the Pledge's language]: "From the time of our earliest history our peoples and our institutions have reflected the traditional concept that our Nation was founded on a fundamental belief in God."  Id. at 31.

This is always the argument: the State's invocation of God is religiously meaningless because it's simply a nod toward our nation's history. Setting aside the debate about whether "our Nation was founded on a fundamental belief in God," this argument is nothing but misdirection. There is no rule that something cannot be both historically and religiously significant. Is Justice Rehnquist seriously saying that the phrase "under God" was added to the Pledge for purely secular and historical reasons? Never mind that it was inspired by a sermon, we just wanted to drop a little history lesson into our patriotism? It's utter nonsense.

The argument that the invocation of God is okay when it serves as a reminder that we are a nation "founded on a fundamental belief in God" is just passive aggressive State support for monotheism (even if not specifically for Christianity). It is, in effect, saying "this is our country, founded on our values, and the government will force you to recognize that."

Again, even granting for the moment the claim that the nation was "founded on a fundamental belief in God," there are many fundamental principles the country was founded on. The philosophies of John Locke, the belief that "all men are created equal," an uppity white aristocracy, slave ownership. The only reason to highlight the religious facet is to try to sneak in the claim that the United States is, has always been, and always will be a nation with a collective belief in a monotheistic God. This is not only demonstrably untrue, but it is absolutely a State endorsement of a family of religions, if not a specific religion (it sure isn't an endorsement of paganism, hindu, voudoun, or atheism, just to name a few).

So I guess, in the end, I'm forced to repeat myself: "I've seen secular before, and a declaration of 'the trust of our people in God' ain't it."

Full post as published by Clever WoT on July 30, 2007 (boomark / email).