ASHINGTON,
March 21 — It has taken 50 years since Congress added "under God" to the
Pledge of Allegiance for the validity of that cold war amendment to reach
the Supreme Court, with arguments scheduled for Wednesday. But before the
justices can decide whether those two words render the pledge
unconstitutional, they have to answer a factual question that is
inextricably entwined with the legal one: what exactly does it mean to
pledge allegiance to "one nation under God"?
According to Michael A. Newdow, the California atheist who sued to stop
the recitation of the pledge in his daughter's elementary school classroom,
to recite the pledge with "under God" is to take "one side in the
quintessential religious question `Does God exist?' " a statement of
"sectarian religious dogma" that the government should not sponsor in a
public school setting.
According to the Bush administration, which is defending the pledge, its
recitation is no more a religious act than pocketing a coin imprinted with
"In God We Trust." The administration's brief says both are simply patriotic
acknowledgments of "the nation's religious history" and of the "undeniable
historical fact that the nation was founded by individuals who believed in
God," an empirical statement that poses no threat to the separation of
church and state.
According to the Christian Legal Society, a group of lawyers, judges and
professors, the pledge has a distinctly religious cast, and properly so. The
group's brief says that the words "under God" support the concept of limited
government, serving as a reminder that "government is not the highest
authority in human affairs" because "inalienable rights come from God."
According to another group of religious individuals, 32 Christian and
Jewish clergy members who take the opposite side in the case, reciting the
pledge with "under God" invites a troubling kind of civic blasphemy. If
children are supposed to utter the phrase without meaning it as an
affirmation of personal faith, the group's brief asserts, "then every day,
government asks millions of schoolchildren to take the name of the Lord in
vain."
According to a form letter signed by
President Bush and
sent to those who wrote the White House about the federal appeals court
decision in June 2002 that declared the pledge unconstitutional, reciting
the pledge is a way of proclaiming "our reliance on God" and of "humbly
seeking the wisdom and blessing of divine providence."
This letter, clearly in some conflict with the current official view,
concluded by expressing the wish that "the almighty continue to watch over
the United States of America." Americans United for Separation of Church and
State and other organizations that oppose the administration's position
included the letter in an appendix to their joint brief.
The striking range of views on just what "under God" signifies represents
only the beginning, not the end, of the justices' task as they take up the
case, Elk Grove Unified School District v. Newdow, No. 02-1624.
For example, if reciting the pledge is a religious act, is it a voluntary
or coerced one, and is that distinction even relevant? In 1992, the court
prohibited prayer led by the clergy at public high school commencement
ceremonies on the ground that the graduating students were effectively
coerced into participating. But a landmark Supreme Court decision from 1943
held that schoolchildren could not be required to recite the pledge. One of
Dr. Newdow's points is that even if the pledge is nominally voluntary, daily
classroom recitation inevitably labels children who do not take part as
outsiders.
If reciting the pledge is seen as a patriotic statement of homage to the
founding fathers, does that make it less problematic or more? Prof. Douglas
Laycock of the University of Texas law school, speaking here Friday at the
Pew Forum on Religion and Public Life, said that seen in that light, the
message of the pledge is that "if you're doubtful about the existence of
God, you are of doubtful loyalty to the nation." Professor Laycock
represents the 32 clergy members who oppose the pledge.
If "under God" is unconstitutional, what is the fate of numerous other
examples of religious references scattered throughout civic life and long
accepted as a benign form of "ceremonial deism"?
Jay A. Sekulow, speaking at the same forum, said that even the Supreme
Court marshal's intonation of "God save the United States and this honorable
court" would be suspect.
Mr. Sekulow, chief counsel of the American Center for Law and Justice, a
legal organization affiliated with the Rev. Pat Robertson, filed a brief on
behalf of several dozen members of Congress who back the pledge as it is
written, as well as 250,000 people who signed a supporting petition.
Justice Antonin Scalia has recused himself, raising the prospect of a
4-to-4 tie. His recusal, announced in October when the court accepted the
case, stemmed from a speech he gave last year that pointedly criticized the
lower court's reasoning.
Aside from the terrorism-related cases that will be argued next month,
there is probably no more heavily freighted issue on the court's current
docket than this one. Politicians touch the pledge at their peril: few have
forgotten the 1988 presidential campaign, when George Bush, then the vice
president, scored easy points by denouncing the veto that his Democratic
opponent, Gov. Michael S. Dukakis, had cast of a bill requiring
Massachusetts teachers to lead their classes in the pledge.
The attorneys general of all states have signed a brief supporting the
pledge, as have the National School Boards Association and the National
Education Association, the teachers' union.
The visibility of the pledge as a political issue faded after 1988, only
to flare up again nearly two years ago, when Dr. Newdow, who has law and
medical degrees and who argued his own case, won a 2-to-1 decision from the
United States Court of Appeals for the Ninth Circuit, in San Francisco, that
the pledge was unconstitutional. The court later narrowed its ruling to bar
only recitation in public school classrooms.
Dr. Newdow will argue his case before the justices. He will be opposed by
Solicitor General Theodore B. Olson and Terence J. Cassidy, counsel for the
Elk Grove district, near Sacramento, where Dr. Newdow's daughter attends
school.
A preliminary question, which will be part of the arguments on Wednesday,
is whether Dr. Newdow, who was never married to the girl's mother and is not
the custodial parent, has standing to pursue the case. The mother, Sandra L.
Banning, has filed a brief supporting the pledge and her daughter's
recitation of it. A decision that Dr. Newdow lacks standing would wipe out
the lower court's ruling, but not the emotion the case has generated or the
potential that a different plaintiff might renew the debate in the next
case.