Technicality and Constitutionality: The Supreme Court and the Pledge

On June 14, 2004, The Supreme Court decided the controversial "Pledge of Allegiance Case" - sort of.

The 8-0 decision does not protect the phrase "under God" from being removed from the pledge, since five of the justices did not decide the case based on constitutionality, but on a technicality.

But for now (and don’t forget that "now" is both a time of war and an election year), the issue has been neutralized and stored away for another day.

Case basics

Doctor and lawyer Michael A. Newdow, who is also an atheist, argued to the Court that his daughter should not have to refer to God every morning while saying the pledge of allegiance in her public school.

The United States Court of Appeals for the Ninth Circuit, deemed one of the most liberal federal courts, agreed with Dr. Newdow, and decided that the phrase "under God" endorses religion and is thus unconstitutional when recited in public schools.

The decision caused public outcry and was condemned by President Bush and Congress. Justice Antonin Scalia publicly denounced the Ninth Circuit decision and therefore had to recuse himself from the case.

"Under God" was added to the pledge during The Cold War, when Congress desired to make a distinction between the United States and the "Godless Communism" of the USSR.

The "decision"

Five of the justices bypassed the church-state debate by saying that the Ninth Circuit decided the case when it shouldn’t have since Dr. Newdow lacks the standing to bring it forward.

Justice John Paul Stevens wrote this majority opinion, which states that Dr. Newdow lacks sufficient custody of his daughter to have "a right to dictate to others what they may and may not say to his child respecting religion." While the justices noted that Dr. Newdow may "instruct his daughter in religious views," they say that California’s child custody laws give the child’s mother, Sandra Banning, authority over their daughter’s education, and Ms. Banning, who is a Christian, wants her daughter to continue saying the pledge with "under God" included.

The other three

Chief Justice William H. Rehnquist, Justice Sandra Day O’Connor and Justice Clarence Thomas took the high road and made their decision based on the constitutionality of the phrase "under God."

All three decided the phrase should remain in the pledge, but for very different reasons. Chief Justice Rehnquist said, "Reciting the pledge, or listening to others recite it, is a patriotic exercise, not a religious one." He added that saying the pledge signifies "fidelity to our flag and our nation, not to any particular God, faith or church."

Justice O’Connor called the pledge "ceremonial deism" and not religious worship. She likened it to the words “God save the United States and this honorable court," which are uttered at the beginning of each Supreme Court session by the Court’s marshal.

Justice Thomas chose to question church-state precedents that may make the pledge unconstitutional. He says that the court needs to re-examine those precedents and make a series of church-state decisions before deciding on the pledge.

These justices’ decisions suggest that the pledge may be interpreted in eight (or nine) different ways when this case resurfaces. Dr. Newdow, who needless to say was unhappy with the decision, claims there are fellow atheists "waiting in the wings" to bring forth similar lawsuits.

The public God

While the Pledge of Allegiance may seem like a small issue in the grand scheme of things, the Court’s characterization of the pledge could have a big impact. In essence, the justices are defining our nation’s public relationship with God.

Overall, the Court shied away from defining the pledge, perhaps because it is a hot-button issue during an election year. But the issue is sure to come up again, probably in a few years. The Supreme Court could have a new member by that time, nominated by the next president. That’s one more reason to think carefully about whom to vote for in November 2004.

Considering the pledge

Do you feel comfortable having nine people whom you didn’t elect decide the meaning of "God" for our country? What does it mean if "God" is merely a "ceremonial deism," as Justice O’Connor claims? What if it’s not? Does it make sense to keep the phrase in the pledge when it is a reference to a different time period, the Cold War?

Discuss these issues with other WomenMatter readers in one of our online forums. If Fair Courts is an important issue for you, sign up for an e alert, and we’ll keep you posted. And don’t forget to register to vote and contact your representatives, because your voice matters.

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Posted on: 6/17/2004