I have a hunch that Elk Grove Unified School District v. Newdow is going to be a ridiculously huge case.
The Supreme Court announced this morning that the high court will consider an appeal of the 9th Circuit Court of Appeals’ ruling that Congress erred by adding “under God” to the Pledge of Allegiance in 1954.
My suspicion on the divisive nature of this case derives from the pandemonium that swept the nation in June 2002 when the 9th Circuit’s ruling was announced. Bush, for example denounced the ruling, saying, “America is a nation that values our relationship with an Almighty.”
The U.S. Senate passed a resolution expressing “disapproval” of the decision 99 to 0. The next day, Joe Lieberman said that he wanted a constitutional amendment to maintain the religious language in the Pledge.
The religious right, naturally, went berserk. Pat Robertson suggested the ruling may cause terrorism. Cal Thomas, a conservative syndicated newspaper columnist, went so far as to compare the 9th Circuit’s ruling to the Sept. 11 terrorist attacks and concluded that the decision may be even worse than the vicious murders of thousands of people.
“On the eve of our great national birthday party and in the aftermath of Sept. 11…the 9th Circuit Court of Appeals in San Francisco has inflicted on this nation what many will conclude is a greater injury than that caused by the terrorists,” Thomas argued.
With these reactions in mind, it’s safe to say America is about to endure a draining and divisive controversy all over again.
Despite media reports to the contrary, the case isn’t exactly on whether or not the Pledge of Allegiance violates the Constitution. Unfortunately, many news outlets have been trying to abbreviate the nature of the controversy, and as a result, have been getting it wrong. CNN’s online headline this morning, for example, read, “Supreme Court to decide whether Pledge is unconstitutional.”
That’s not quite right. The case dealt specifically with Congress’ decision 49 years ago to change the Pledge, not challenging the Pledge itself.
Many Americans may not realize this, but the Pledge of Allegiance, as recently as 1953, was completely secular. It ended, “…one nation, indivisible, with liberty and justice for all.” There wasn’t anything wrong with the old way. This was the Pledge during WWI and WWII, and America did not suffer as a result of a non-religious patriotic oath. The nation was, in other words, no less patriotic (nor religious) when school children simply pledge alliance to a flag representing an “indivisible” nation.
Congress, however, wanted to give the Pledge a little touch up in 1954 — and make the country a little more divisible. It was at the height of the Cold War and politicians were anxious to take advantage of the “red scare.” Lawmakers thought adding “under God” to the Pledge would be a strike against “godless communism.”
The Elk Grove v. Newdow case challenged the 1954 revision of the Pledge. The 9th Circuit panel, led by a judge appointed by Richard Nixon, agreed that the decision to add religious language was inconsistent with the principle of church-state separation.
National hysteria not withstanding, the 9th Circuit’s ruling was not a radical decision. The appeals court simply ruled that government neutrality on religion, as dictated by the First Amendment, prohibited Congress from adding a monotheistic religious reference to what was a secular Pledge.
“A profession that we are a nation ‘under God’ is identical…to a profession that we are a nation ‘under Jesus,’ a nation ‘under Vishnu,’ a nation ‘under Zeus,’ or a nation ‘under no god,’ because none of these professions can be neutral with respect of religion,” the court ruled. “The coercive effect of this policy is particularly pronounced in the school setting given the age and impressionability of schoolchildren, and their understanding that they are required to adhere to the norms set by their school, their teacher and their fellow students.”
To be sure, the ruling was controversial, but even critics of the decision had trouble articulating how the court had made a mistake.
Eugene Volokh, a church-state scholar at UCLA Law School, told the Washington Post that the 9th Circuit’s ruling is “eminently defensible” and consistent with the “principle the Supreme Court has established.” Jack Balkin, a professor at Yale Law School, told Time, “As a matter of common sense, a court should struggle not to reach this result.”
Tony Mauro, the Supreme Court correspondent for American Lawyer Media, wrote in May, “Face it. In your heart of hearts, you know, and the court likely knows, that deleting “under God” from the pledge is the right answer in a nation that is supposed to respect those who believe in no God or believe in other higher beings with other names.”
Jamin Raskin, who teaches constitutional law at American University, told Salon.com, “If we could somehow drain the emotion from the discussion, the vast majority of people would see this as a perfectly logical and modest decision.”
Logical or not, removing the emotional angle to the debate has proven virtually impossible in the volatile political atmosphere. Most people are under the mistaken impression that this case will dictate the future of American patriotism and religious freedom. The Supreme Court, which will hear the case sometime next year, will, as a result, be touching off an intensely emotional controversy.
It will be one of the nastiest legal fights in years.