Love and scandal are the best sweeteners of tea. —Henry Fielding

17 June 2004

Elk Grove Unified School Dist. v. Newdow

This case covered the "under god" part of the Pledge of Allegiance, which contrary to popular belief was not in the original pledge.  This phrase "under god" was added in the 1950s by Congress and signed by President Eisenhower. The challenge to this "under god" phrase came from a California atheist named Michael Newdow, who objected to his daughter's "coerced" recitation of this phrase on a daily basis. 


The Supreme Court held on Monday not that "under god" is or is not Constitutional, but that Mr. Newdow, not having custody of his daughter, has no legal standing to bring this matter to trial.  The Court held, rather, that the mother as sole custodian of Newdow's daughter, was the only person with legal authority to object to the phrase on behalf of their daughter.  The mother does not object to the pledge. 


The Court was absolutely right to do so.  To decide anything else would probably have thrown all of the family courts into upheaval.  The lower family courts would then have to hold that non-custodial parents do indeed have the right to decide questions of religion, further complicating family law.


As for the decision on the "under god" question, my own opinion is that anything that came out of the Eisenhower administration is suspect.  I would also say that I find religious invocations of this kind exclusionary, but only mildly—if at all—offensive.  I wouldn't mind if the Court voted to remove the phrase, honestly, but I will, as usual, choose to agree with Justice O'Connor, to wit—beginning on page 36 of the Court's opinion:

The Court has permitted government, in some instances, to refer to or commemorate religion in public life.  See, e.g., Pinette, supra; Allegheny ,supra; Lynch, supra; Marsh v.Chambers, 463 U.S.783 (1983). While the Court’s explicit rationales have varied, my own has been consistent; I believe that although these references speak in the language of religious belief, they are more properly understood as employing the idiom for essentially secular purposes. One such purpose is to commemorate the role of religion in our history. In my view, some references to religion in public life and government are the inevitable consequence of our Nation’s origins. Just as the Court has refused to ignore changes in the religious composition of our Nation in explaining the modern scope of the Religion Clauses, see, e.g., Wallace, supra, at 52–54 (even if the Religion Clauses were originally meant only to forestall intolerance between Christian sects, they now encompass all forms of religious conscience), it should not deny that our history has left its mark on our national traditions. It is unsurprising that a Nation founded by religious refugees and dedicated to religious freedom should find references to divinity in its symbols, songs, mottoes, and oaths. Eradicating such references would sever ties to a history that sustains this Nation even today. See Allegheny, supra, at 623(declining to draw lines that would “sweep away all government recognition and acknowledgment of the role of religion in the lives of our citizens”).
Facially religious references can serve other valuable purposes in public life as well. Twenty years ago, I wrote that such references “serve, in the only ways reasonably possible in our culture, the legitimate secular purposes of solemnizing public occasions, expressing confidence in the future, and encouraging the recognition of what is worthy of appreciation in society.” Lynch, supra, at 692–693(O ’CONNOR, J., concurring).
For centuries, we have marked important occasions or pronouncements with references to God and invocations of divine assistance.
Such references can serve to solemnize an occasion instead of to invoke divine provenance. The reasonable observer discussed above, fully aware of our national history and the origins of such practices, would not perceive these acknowledgments as signifying a government endorsement of any specific religion, or even of religion over non-religion.
There are no de minimis violations of the Constitution—no constitutional harms so slight that the courts are obliged to ignore them. Given the values that the Establishment Clause was meant to serve, however, I believe that government can, in a discrete category of cases, acknowledge or refer to the divine without offending the Constitution. This category of “ceremonial deism” most clearly encompasses such things as the national motto (“In God We Trust”), religious references in traditional patriotic songs such as the Star-Spangled Banner, and the words with which the Marshal of this Court opens each of its sessions (“God save the United States and this honorable Court”). See Allegheny, 492 U.S., at 630 (opinion of O ’CONNOR, J.). These references are not minor trespasses upon the Establishment Clause to which I turn a blind eye. Instead, their history, character, and context prevent them from being constitutional violations at all.
This case requires us to determine whether the appearance of the phrase “under God” in the Pledge of Allegiance constitutes an instance of such ceremonial deism. Although it is a close question, I conclude that it does.

O'Connor cites four specific methods of deciding when something like this is what she calls "ceremonial deism," and that's good enough for me.


Have I mentioned lately that I love Justice O'Connor?