One nation under (mumble)

[dougo]

Michael Newdow sued his local school district on behalf of his daughter, claiming that their policy requiring the recital of the Pledge of Allegiance, including the phrase "one nation under God", was religious indoctrination of his daughter and thus violated the Establishment Clause of the First Amendment ("Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof"). The Supreme Court ruled against him on a technicality (pdf), saying he didn't have the right to sue in behalf of his daughter because he didn't have legal custody of her. "As one wag put it, the justices found it easier to separate parent and child than to separate church and state." Apparently the technicality is pretty controversial in its own right—in fact, the SCOTUS decision was split 5-3, with the dissenting opinion by Rehnquist (joined by O'Connor and Thomas) saying:

The Court today erects a novel prudential standing principle in order to avoid reaching the merits of the constitutional claim. I dissent from that ruling. [...] Although the Court may have succeeded in confining this novel principle almost narrowly enough to be, like the proverbial excursion ticket—good for this day only—our doctrine of prudential standing should be governed by general principles, rather than ad hoc improvisations.

It goes on to say that the Pledge does not violate the Establishment Clause, and O'Connor and Thomas provide their own opinions in agreement.

It's somewhat curious that the majority opinion (written by Stevens) says:

The California cases simply do not stand for the proposition that Newdow has a right to reach outside the private parent-child sphere to dictate to others what they may and may not say to his child respecting religion. A next friend surely could exercise such a right, but the family court’s order has deprived Newdow of that status. (emphasis added)

This seems a clear invitation to try again, which makes it seem like the custody issue was just a political delaying tactic to avoid having to make a potentially controversial decision. I wonder what that decision would be, though; it's clear that the three dissenters believe the Pledge is constitutional, and Scalia recused himself because he had already said as much in public. I suspect that at least one of the other five also agrees, and it might even be unanimous, but at least someone is uncomfortable making the decision right now—perhaps because it's an election year?

As an atheist/agnostic, I sympathize with Newdow's quest to Restore our Pledge of Allegiance, as well as removing references to God from our money, the national anthem, etc. (all of which are used as evidence in Rehnquist's opinion that "[f]rom 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"), but I wonder if there are more important (and less constroversial) ways to stand up for atheists' rights. For instance, the South Carolina state constitution says "No person who denies the existence of the Supreme Being shall hold any office under this Constitution." Surely that's a much more flagrant "establishment of religion" than just the phrase "under God", and I would hope that even most Christians would agree. I also suspect that it would be better to lobby Congress to undo the 1954 addition of "under God" (at the height of McCarthyism and fear of "godless Communism") rather than trying to change it through the courts. ...Well, on second thought, Congress isn't likely to touch it given the current political climate (which is not far removed from McCarthyism), but maybe he/we could start by lobbying local schools to change their policies, a bottom-up approach rather than top-down.

Comments

[greyaenigma.livejournal.com]

I was deeply disappointed in the tactic of avoidance the court used to deny Newdow his case. It's hard to imagine it's for any reason other than politics, since neither side would want to take the chance that the other might have the upper hand by the time this comes around. Unless maybe someone in the anti-Newdow camp pointed out the loophole and the others felt duty bound to point out that Newdow specifically didn't have the right. Especially strange since parental custody wouldn't seem to to be a Constitutional issue.

I'd also heard some fear that (again, with the upcoming election), a ruling striking down the new pledge would cause a backlash which could further divide the country.

[mshonle.livejournal.com]

I'm indifferent to Under God. I used to be a pretty activist atheist but little quirky traditions don't really seem to have any effect on opressing minorities. If we got rid of it, I'd think it were fine, but in a time like this (when instead of thinking of America as Judeo-Christian we should be thinking of is as Abrahamic) showing our common ground with the muslims of the world is better emphasizing our differences.