The Supreme Court is leaving “under God” in the Pledge, but the circumstances are a little tricky. Oddly enough, I think this is probably the best outcome I could have hoped for.
The Supreme Court at least temporarily preserved the phrase “one nation, under God,” in the Pledge of Allegiance Monday, ruling that a California atheist could not challenge the patriotic oath.
The procedural ruling did not directly address whether the pledge recited by generations of American schoolchildren is an unconstitutional blending of church and state.
The court said the atheist could not sue to ban the pledge from his daughter’s school and others because he did not have legal authority to speak for her.
In other words, Michael Newdow filed suit challenging the constitutionality of the Pledge, arguing that his daughter was being exposed to the exercise every morning in a California public school. The Supreme Court didn’t speak to whether Congress violated the First Amendment when lawmakers changed the Pledge in 1954, but instead ruled against Newdow on procedural grounds — he doesn’t have full custody of his daughter, and as such, couldn’t sue on her behalf. The ruling was unanimous.
The practical result of the ruling leaves the Pledge in tact, at least as it’s been recited since ’54. Why would I, someone who opposes the religious phrase in the Pledge, think today’s ruling is the right move? Politics.
The Supreme Court wanted to rule against Newdow, but if the justices ruled against him on the merits, they would have had to set precedent supporting state-sponsored religion, which as an advocate of church-state separation, I did not want to see. Today’s ruling doesn’t really deal with church-state law at all.
Just as importantly, if the Court had ruled my way and struck down the 1954 change to the Pledge, the political uproar would have been devastating. Congress would have moved quickly and efficiently to add a constitutional amendment, which would have passed easily, while Bush would have another rhetorical club against the federal judiciary to use throughout the campaign season.
Of course, by not dealing with the substance of the case, the door is still open to another challenge, probably by a litigant who does have custody of his or her child. We’ll see how soon that case gets filed.
But in the meantime, today’s ruling has a little bit of something for everyone. The Pledge still has the religious phrase, but there’s no anti-separation precedent, and the decision is hard to exploit for political purposes, since it simply deals with a procedural matter. Given the circumstances, I couldn’t have hoped for a better outcome.