For those who like such things, I’d recommend curling up on a rainy day with the Ninth Circuit’s 2-1 decision in Newdow v. Rio Linda Union School District, which reverses a district court ruling that having public school children recite the Pledge of Allegiance with the phrase “under God” violates the First Amendment’s prohibition of religious establishments. Writing for the majority, Judge Carlos T. Bea spends 57 pages doing an astonishing series of legal back flips to show that the phrase is all about patriotism and the Founders and limited government, as opposed to having a religious purpose. Whereupon Judge Stephen Reinhardt spends 136 pages giving the performance an F, with extreme prejudice.
What happens next, according to the Los Angeles Times, is an effort to get an en banc hearing from the entire Ninth Circuit and, failing that, an appeal to the Supreme Court. Whether the justices will go for it is an interesting question. They took Michael Newdow’s first Pledge case, and then decided to punt rather than decide it on the merits–asserting that Newdow lacked standing to bring the case. That was back in June of 2004, and it certainly looked like a majority of the justices just didn’t want to infect the election campaign with a huge symbolic “under God” fracas.
The real problem here is that it’s very hard to make a case that having government officials (i.e. public school teachers) lead students every morning in a patriotic exercise that invokes God does not amount to a religious exercise–especially when you look at the legislative history of the insertion of the phrase into the Pledge in 1954. Yet the last thing sensible people should want is a Grand Public Cause resulting in a constitutional amendment establishing “under God” and who knows what else as religious exceptions to the First Amendment.
The Pledge is one long declarative sentence, the first half of which is inarguable (“I pledge allegiance to the flag of the United States of America; and to the Republic for which it stands”); the second half, wishful or perhaps prayerful (“one nation under God, indivisible, with liberty and justice for all”). Probably the best thing to pray for is that the Ninth Circuit and the Supreme Court decline to hear the case.
