June 15, 2004

Next step: bringing back school prayer

Flashback: The Pledge of Allegiance: The PowerPoint Version.

As I've said before, it seems obvious to me that "under God" in the pledge is unconstitutional. It's not a major concern of mine, but unlike Dana Mulhauser, I would have preferred a judgment to a wishy-washy non-judgment.

That said...

That said, Dahlia Lithwick convinced me that in the particular case before them, the majority in fact ruled correctly: Newdow did not have standing, and it would have been wrong to ignore that to make a First Amendment point.

The court's decision this morning does not reflect judicial gutlessness. It would have been more gutless to throw millions of custody arrangements into question, turning what were once considered final divorce decrees across the country into open-ended suggestions. Safeguarding the idea that custody decrees are final may not be a sexy constitutional issue. But I'd wager that it'll be better for the health and sanity of more American children than cajoling them into saying good morning to God every day.

Lithwick may be granting the judges more credit than they deserve -- I'd hazard a guess that gutlessness was their real reason for their decision -- but either way, they probably did make the right call.

Someday, as everyone has noted, there will have to be a decision on the god-pledge itself, and nothing I've seen today has done anything other than convince me that its defenders don't have a leg to stand on. A common theme is that pushing the words "under God" is not "religious indoctrination. It is a simple declaration, which one is free to believe or not, declare or not." For that too be true, from a legal standpoint, it would have to be equally acceptable for the pledge to say "under no god," "under Vishnu," or "under Satan." The people who believe it can say it, and those who don't, don't have to, right?

Then of course there's the Sandra Day O'Conner argument that "some references to religion in public life and government are the inevitable consequences of our Nation's origins... Eradicating such references would sever ties to a history that sustains this Nation even today."

Never mind that Newdow effectively demolished the ceremonial deism case in his oral argument [pdf]. O'Connor's attempt to reach back to "our Nation's origins" to defend a convention that was a creation of Cold War politics is just bizarre. To the extent that the pledge helps sustain the nation, it did so just fine for 60 years without the inclusion of God.

Whenever I see arguments like the above -- people for whom God is clearly important (and quite rightly from their point of view) saying "oh, God isn't really important" -- I can't help but suspect they just know they're not supposed to say what they really believe. So I was actually gladdened to see at least one person just come right out and say it:

Let me be clear on this. I do not think you can fully be a true American patriot without first loving the God who blesses this nation. Sure, an atheist can fly a flag, pledge allegiance (without mentioning God), even fight and die for our country…all legitimate patriotic acts.

But, without recognizing the God who makes this country possible, can you fully be a patriot? Without God, there is no free United States, because freedom, even the freedom to not believe in Him, comes from and is ordained by God Himself.

True, that's just some right-wing nut. But don't forget that there are a couple of fairly nutty types on the Supreme Court.

The Washington Post pointed out that one reason to be grateful for the Court's decision is that the three "concurring" judges in fact "produced three different opinions, and Justice Thomas used the occasion to advance a truly radical vision of church-state separation... There is no guarantee that the court would have spoken coherently and constructively about a genuinely gray area of law had it tried."

I hadn't seen anyone go into what Thomas wrote so I looked it up, and, pardon the expression, good lord!

To his credit, he doesn't hold truck with O'Conner and others who'd try to parse the meaning of God:

"Under Barnette, pledging allegiance is 'to declare a belief' that now includes that this is 'one Nation under God.' It is difficult to see how this does not entail an affirmation that God exists. Whether or not we classify affirming the existence of God as a 'formal religious exercise' akin to prayer, it must present the same or similar constitutional problems."

So, wait, Thomas is against including God in the Pledge? No, he thinks just about every previous church-state case was wrongly decided by the Court. In fact, if I'm reading him right, he'd all but do away with the Establishment Clause as we know it. I admit I don't get all the legalese, but a key sentence I do understand begins, "But even assuming that the Establishment Clause precludes the Federal Government from establishing a national religion..." In other words, he's introducing a backup argument, but only because he suspects it will be hard to convince people of what he really believes: that the Constitution permits the establishment of a national religion.

So what does that clause prohibit? Here's Thomas' limit:

The traditional 'establishments of religion' to which the Establishment Clause is addressed necessarily involve actual legal coercion:

'The coercion that was a hallmark of historical establishments of religion was coercion of religious orthodoxy and of financial support by force of law and threat of penalty. Typically, attendance at the state church was required; only clergy of the official church could lawfully perform sacraments; and dissenters, if tolerated, faced an array of civil disabilities. Thus, for example, in the Colony of Virginia, where the Church of England had been established, ministers were required by law to conform to the doctrine and rites of the Church of England; and all persons were required to attend church and observe the Sabbath, were tithed for the public support of Anglican ministers, and were taxed for the costs of building and repairing churches.

Got that? Government is not allowed to throw you in jail if you don't go to church. Whew! But school prayer, the Ten Commandments looming behind the teacher or judge? A-OK.

That's the mindset that Newdow wanted to change.

Posted by Daniel Radosh


I'm afraid you've got it wrong. Thomas is not being a fruitcake here, but rather is talking about an intractable tension in religion cases--the collision between the Free Exercise Clause and the Establishment Clause. The Free Exercise Clause says that Congress (and now via the 14th Amendment the states) cannot interfere in anyone's practice of religion, which of course includes being non-religious (agnostic, atheist). The Establishment Clause states that Congress shall not pass any law respecting the establishment of religion (which has also been applied to the states--which Thomas disagrees with). The problem under the current cases is that allowing the majority to freely practice their religion (Christianity) in public or at civic functions starts to look like establishment of an official religion. However, any law to ban expression of religion at schools, parades, etc. necessarily violates the Free Exercise Clause. Hence the mess that is the Supreme Court's jurisprudence on these issues. Thomas' view, which is quite intellectually respectable, is that the Establishment Clause only applies to the United States, and only restricts practices which force people to do or not to do something; however, he thinks it should not restrict government officials, people in parades, teachers or anyone else from expressing their religious beliefs. Under the current law the free exercise of religion by individuals is banned on many occasions. To many people that is more offensive than being preached at by someone whose religious beliefs they disagree with.

Thanks. My lawyer friend Jared similarly explained why there's a legitimate historical argument that the Establishment Claus not be applied to the states, though he notes, "the California Constitution itself prohibits the establishment of religion by that state, as do most if not all state constitutions. That would have provided separate grounds for striking "under God" from the Pledge."

As for the thrust of Cy Borg's comment that the current interpretation of the law restricts "government officials, people in parades, teachers or anyone else from expressing their religious beliefs," I think it's possible to draw a line between individual expression and institutional endorsement. Teachers should be (and are) allowed to wear crosses, for example. Students should be (and are) allowed to read the Bible or pray in school of their own volition. But for an authority deputized by the school to lead students in a de facto mandatory (if technically voluntary) prayer or religious pledge crosses the line. I don't see how the free exercise of individual religion is restricted at all in these cases; all that is restricted is the enlisting of government to assist that exercise.

You've put your finger on the tough question. Can a teacher articulate his/her religious beliefs in class? Can a valedictorian at a graduation, on his/her initiative, lead a prayer? The answer under the current jurisprudence is probably "no", and you'd agree with that. Thomas goes the other way.

Though I don't think Thomas is off his rocker, I don't agree with him as a matter of policy. I like the strict separation of Church and State. What many of the nutters who get so upset about this issue don't realize is that it is the strict separation that has made the US the most god-fearing country in the world. Nothing kills faith like aligning religion with Caesar. It's one of the many revolutionary, clear and undisputable aspects of the teachings of Jesus that many refuse to acknowledge. However, it's something that I think the Framers, who were extremely well versed in theology and the bloody religious disputes regarding state sponsored religion, understood, and so while they might have drawn the line differently in terms of public expression of religion, I think they would agree that a strict separation is better for the faithful and the faithless.

Cy Borg

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