Still Under God
by David W. Machacek
When the Supreme Court marshal opened proceedings on June 14 with the
customary “God save the United States and this honorable Court,” the
supplication may have been more earnest than usual.
Two years earlier, the Ninth Circuit Court of Appeals had ruled that the
Elk Grove School District policy of starting school days with teachers
leading their classes in the Pledge of Allegiance was unconstitutional
because, since 1954, the Pledge has declared the United States to be a
nation “under God.” The public responded with shock and outrage.
One unnamed AM radio host, the San Jose Mercury News’
Katherine Corcoran reported June 27, 2002, “said lawmakers and even
President Bush were pointing the finger at the 9th Circuit,
adding, ‘I won’t say which finger.’”
Among scores of colorful reactions no one topped Kevin O’Brien, deputy
editorial director for the Cleveland Plain Dealer, who on June 30
wrote that Michael Newdow, the plaintiff in the case, “suspects this country
is going to heaven in a handbasket” and has “no intention of standing idly
by and watching it happen.” The “predictably loony” Ninth Circuit judges
might find Newdow’s complaint reasonable, but they “get their leashes yanked
by the Supreme Court so often, they might as well wear reversible robes.
They’re always up to something that winds up providing comic relief for real
judges, once they get over the aggravation of seeing the law so routinely
mangled.”
William Donohue of the Catholic League for Religious and Civil Rights
issued a press release urging civil disobedience in response to the
decision: “We need teachers all over the nation to lead their students in
the Pledge (respecting the right of dissenters not to participate). But
before doing so, the teachers need to contact both the police and the media:
it is vitally important that everyone watch on television the teachers being
taken away in handcuffs for saying the Pledge of Allegiance.”
Public officials struggled to find words strong enough to convey the
strength of their disapproval. White House spokesman Ari Fleischer called
the ruling “ridiculous”; to Senate Majority Leader Tom Daschle it was “just
nuts”; “senseless,” pronounced Sen. Joseph Lieberman.
Within days, both the U.S. Senate and House of Representatives passed
resolutions denouncing the decision, the Senate unanimously. Hearst
Newspapers Washington columnist Marianne Means could not resist the irony of
an atheist performing the “political miracle” of getting “the pokey,
partisan Congress to act swiftly and in unison.”
But amid the shock and dismay, there were those who made so bold as to
suggest that Newdow was neither ridiculous nor nuts.
The problem with the decision, San Francisco Chronicle
columnist Jon Carroll wrote June 27, was that “as a matter of common sense,
the court’s ruling is both sensible and obvious.” On the Fourth of July, the
Boston Globe’s Ellen Goodman weighed in, writing that “the
court’s ‘untraditional’ opinion was as careful as it was controversial.”
Reporters had little trouble finding people with good reason to applaud
the decision. On June 27, after talking with Rev. Masao Kodani of the
Senshin Buddhist Temple in Los Angeles, Bob Egelko of the San Francisco
Chronicle reported that Buddhists “do not believe in God and many view
the concept of a supreme creator as a cause of suffering. Kodani said he
instructs children in his temple’s dharma classes to recite the Pledge in
school but to remain silent during the mention of God.”
Teresa Watanabe of the Los Angeles Times placed the decision in
the context of the country’s increased religious diversity. “Particularly
since changes to federal immigration law in 1965, the nation’s religious
landscape has been reshaped by new waves of Muslims, Buddhists, Hindus and
other minority groups,” Watanabe wrote July 3. “Some conservative Christian
leaders have denounced the growing diversity from the pulpit and called for
a new reassertion of the nation's ‘Judeo-Christian heritage’ in public
life.”
The question was whether “under God” was expansive enough, or indeterminate
enough, to embrace the new variety of American religious perspectives. “The
word ‘God’ is vague and vast, an umbrella,” Kyogen Carlson, abbot of the
Dharma Rain Zen Center in Portland, told the Portland Oregonian’s
Nancy Haught on June 28. “From a Buddhist point of view, someone can ask me
whether I believe in God, and I can answer yes or no truthfully. I do not
believe in God as other, but God as cosmic principle I have no problem
with.”
Washington Post columnist Richard Cohen was likewise willing to give
“under God” a pass, writing on July 9 that the words constituted “a trivial
and mostly innocuous governmental affirmation of religious belief.” That the
Pledge was innocent enough to pass constitutional muster some reporters
showed by interviewing schoolchildren.
On November 5, 2003, for example, M.L. Lyke of the Seattle
Post-Intelligencer came up with the following rendition based on his
discussion with first-graders at a local school: I pledge de legions to
the flag / of the United States of America / and to the public of which it
stands / one nation, under guard, in delivery / with liverty and justice and
all. Amen.
But as Newdow awaited its day in the Supreme Court, the
realization began to take hold that this was actually a very hard
case—particularly in light of the relevant legislative history. Writing in
USA Today on May 5, 2003, Tony Mauro joined many other journalists in
pointing out that “under God” had been inserted into Pledge in 1954 in order
to distinguish a faithful America from “godless communism.”
“Neither Congress nor President Dwight Eisenhower made any bones about
the religious intent of the added words,” Mauro wrote. “‘From this day
forward,’ Eisenhower said, ‘the millions of our schoolchildren will daily
proclaim…the dedication of our nation and our people to the almighty.’” As
for the notion that the words have since become so rote as to be stripped of
any religious significance: “That is a hollow ‘burn down the village to save
it’ kind of argument that does not have much merit.”
“Ridicule has been heaped upon the California parent, Michael A. Newdow,
who challenged the pledge and won in federal court,” the St. Louis Post
Dispatch declared on October 16, 2003. “But he has a respectable
argument.”
“The Bush White House has jumped to the defense of the Pledge,” wrote
Jeff Bruce in the October 19 Dayton Daily News. “This, of course, is
hardly an act of political daring…. Defending the Constitution, on the other
hand, can sometimes involve risk.”
What was the Supreme Court to do? In the run up to the March 24,
oral argument, a number of stories focused on the conundrums.
“If ‘under God’ is really as religiously unimportant as Pledge proponents
claim, then the government is asking students ‘to take the name of Lord in
vain,’ which violates the Ten Commandments,” Douglas Laycock, a church-state
theorist at University of Texas Law School, told the Associated Press on
March 12.
“Before the justices can decide whether those two words render the Pledge
unconstitutional,” Linda Greenhouse, the New York Times’ astute
Court-watcher, wrote on March 21, 2004 “they have to answer a factual
question that is inextricably entwined with the legal one: what exactly does
it mean to pledge allegiance to ‘one nation under God?”
In the meantime, conservative activists and politicians were gearing up
for an “under God” crusade.
An April 8 article by Keith Peters on the Focus on the Family website,
www.family.org, reported that Congress was exploring the possibility
of separating the unruly justices of Ninth Circuit by splitting the court
into two or three circuits. The article directed readers to the
organization’s “Stop Judicial Tyranny” website where readers could learn
about bills under consideration in the Judiciary Committees of both the
House and Senate designed to “strip” courts of the power to decide cases
involving state-sponsored religious expression, including two “Pledge
Protection Acts.”
On June 8, the Senate Judiciary Committee held a hearing on the
“Constitution Restoration Act,” written in part by Roy Moore, the former
chief justice of the Alabama Supreme Court ousted for refusing to comply
with a federal court order to remove a three-ton monument to the Ten
Commandments from his courthouse. The hearing, entitled “Beyond the Pledge
of Allegiance: Hostility to Religious Expression in the Public Square,”
featured testimony complaining that “religious expression is being
threatened across the country by activist groups and judges,” according to
Amy Fagan, reporting on the hearing in the June 9, 2004 Washington Times.
Attempts by the legislature to wrest control of the power to interpret
the Constitution from the judiciary are hardly new. Charges of “judicial
activism,” calls for impeachment of justices, and proposals for laws and
constitutional amendments designed to compel judicial compliance have long
been commonplace responses to unpopular decisions. Nonetheless, since
Marbury v. Madison in 1803, the Supreme Court has maintained itself as
the final authority on constitutional interpretation.
However, the Court has done so not through an exercise of raw judicial
power, but by carefully protecting its credibility as an impartial forum for
arbitrating between what the public wants and what the Constitution
requires. In part, it has accomplished this by avoiding issuing rulings that
directly contradict overwhelming public opinion.
On March 24, the AP released the results of a national poll in which 87
percent of respondents said “under God” should remain in the Pledge. In the
face of such overwhelming public sentiment, an opinion favoring Newdow’s
position would have been very difficult to sell—and in any event would have
given religious conservatives powerful new ammunition to use in their
campaign to undermine the credibility of the Court’s Establishment Clause
decisions.
At the same time, an opinion upholding the Pledge wording would be
exceedingly difficult to rectify with the Court’s prior interpretation of
the Establishment Clause, which has been held to prohibit state endorsement
of religious belief and policies that, however subtly, coerce individuals to
profess belief or participate in religious practices.
Arch conservative Phyllis Schlafly may have put it best, in an opinion
published April 5, 2004 on Townhall.com: “The Supreme Court is faced with
the choice between abandoning its…precedents or affirming them, which would
plunge the justices into the angry sea of public scorn and congressional
retaliation.” It was, indeed, a classic Catch-22.
Given those circumstances, the Court did the only thing it could do: It
punted, citing “prudential” reasons in its decision reversing the Ninth
Circuit Court ruling. In the majority opinion, Justice Stevens said a lower
court ruling that gave Sandra Banning full legal custody of Newdow’s
daughter called Newdow’s standing in the case into question. Given the
controversial nature of the case and Newdow’s questionable standing to bring
the case, Justice Stevens wrote, “the prudent course is for the federal
court to stay its hand.” That left the constitutional issue unresolved.
Nation-wide, some journalists were perplexed that the justices gave no
answer to the question that had so exercised the nation. “So America is
still a nation under God after all,” opined Lakeland, Florida, Ledger
religion editor Cary McMullen on June 19. “Funny how nobody is particularly
happy about it.” The Northwest Indiana Times complained on June 17,
“the justices did not do their jobs.”
McMullen was finally reconciled by recognizing the parity of the Court’s
decision in Newdow with its refusal to hear Roy Moore’s appeal of a
federal court order to remove his monument to the Ten Commandments from the
Alabama Supreme Court building. “Newdow is the second zealot the court has
rebuffed in recent months,” McMullen wrote. “Considering these cases
together, the court . . . has steered a course between the extremists on
both sides.”
Further to the right, on July 5 Erik Potter, news editor of the
Illinois Leader, which describes itself as “Illinois’ Conservative News
Source,” expressed his sense that “an opportunity was lost to settle a
disruptive issue that has troubled this country for 50 years.” Recalling the
context of McCarthyism and the Red Scare, “these words were added in a time
of virtual paranoia….They were not intended to invoke a unifying, holistic,
‘indivisible with liberty and justice for all’ sentiment,” and, in Potter’s
opinion, they “deserve an honest questioning, if for no other reason than
they did not receive one in 1954.”
On the left, Linda Greenhouse seemed, in the June 15 New York Times,
to delight in what she described as “portraits in irony.” “Justice Stevens,
one of the court’s most liberal members, offered a paean to judicial
restraint…quoting from an opinion written in 1983 by the conservative icon
Robert H. Bork, then an appeals court judge.” “Justice Stevens is a
consummate craftsman,” Greenhouse snickered, “and the sly reference was
clearly intentional.”
Chief Justice Rehnquist, according to Greenhouse, “criticized the
majority’s invocation of the doctrine as ‘novel,’ ‘ad hoc,’ and so narrowly
drawn as ‘to be, like the proverbial excursion ticket—good for this day
only.’”
“That remark,” Greenhouse reminded readers, “mirrored almost exactly the
criticism of the majority opinion he joined four years ago in Bush v.
Gore, the case that decided the 2000 election through an unusual
application of equal protection principles and with instructions that the
decision not be cited as precedent for any other case.”
For Findlaw columnist (and Yeshiva University law professor) Marci
Hamilton, whose June 18 column gave the most detailed exposition of the
decision, the answer to the Establishment Clause question was “easy.”
“Current doctrine yields only one result—[the pledge] is unconstitutional,
as Justice Thomas convincingly argues.” Thomas, whose church-state
jurisprudence is rarely praised by any but the most religiously
conservative, received admiring words from Hamilton, a self-proclaimed
advocate of church-state separation: “For integrity, Justice Thomas gets the
award hands down.”
The rub is that Justice Thomas—who has consistently voted with Scalia in
Establishment Clause cases and who, along with Scalia, has been held up as a
model Supreme Court justice by President Bush—went on to argue that the
Court’s Establishment Clause jurisprudence has been flawed since 1952.
For Hamilton, that is precisely why O’Connor’s approach, while an
“unfortunate departure” from the “framework for the Establishment Clause
that she has elsewhere adeptly constructed”—jurisprudence that the Ninth
Circuit Court had followed carefully in its decision—is more desirable and
probably “the best one can do if one wants to reach the intuitive result
that ‘under God’ does not establish religion.”
On June 14, U.S. Newswire legal reporter Heather Morton reported that
Doug Laycock, who filed an amicus brief on behalf of 32 Christian and Jewish
clergy who took exception to the government’s argument that the reference to
God was devoid of religious significance, told a roundtable discussion
organized by the Pew Forum on Religion & Public Life that the Court’s
decision was “an entirely sensible resolution to a difficult question. For
most Justices in the majority, this result avoided a very difficult problem:
it was politically impossible to strike down the Pledge, and legally
impossible to uphold it.”
The plurality view of the editorial pages of the national papers,
likewise, was that the Court did the right thing. “The decision turns one of
the court’s hot-button cases into a real dud—and for this Americans ought to
be grateful,” wrote the Washington Post on June 15. “A decision based
on standing may have the feel of a cop-out,” they continued, but “insisting
that the courts refrain from considering such matters unless someone with a
clear stake in them objects is one of the central checks against overly
broad judicial power.”
By punting, the Court removed an inflammatory issue from the
election-year agenda, inoculated itself against charges of activism, and
preserved—at least for now—the credibility of a half-century of
Establishment Clause jurisprudence.
As the Pledge story developed, what journalists at first perceived as an
interesting but probably trivial question of Constitutional principle raised
profound questions about the power of the executive and legislative branches
to encroach on civil rights, legislative challenges to the Court’s authority
to interpret the Constitution, and the proper scope and exercise of judicial
power.
While the Newdow case raised these issues in the public mind,
however, these questions were put more directly to the test by the Bush
administration’s “bold claim of unreviewable executive power” in the cases
involving the rights of so-called enemy combatants in the war on terror, as
Greenhouse noted in her annual review of the Supreme Court’s term on July 4,
2004. At the end of its 2003-4 term, an embattled Court chose a skirmish it
could win and sent a powerful message to the President and Congress that the
Court “has the last word on what the Constitution means.”
|