Balkinization  

Wednesday, March 24, 2004

JB

What's Law Got To Do With It?

The Supreme Court heard arguments today in Elk Grove Unified School District v. Newdow, and it is very likely that Newdow will lose. The only question is whether the Court will reach the merits or will dismiss on standing grounds. That's not because the law is clearly against Newdow. Indeed, as William Safire puts it in his column, "The only thing this time-wasting pest Newdow has going for him is that he's right." Rather Newdow will lose because no matter what the existing doctrine says the Supreme Court is not going to hold that government officials' use of the phrase "under God" in the Pledge of Allegiance violates the Establishment Clause. The doctrine will simply be parsed or altered in such a way as to avoid this result.

Newdow's strongest argument is that under the Establishment Clause, government may not itself engage in religious activities or encourage citizens-- and particularly schoolchildren-- to affirm particular religious beliefs. When public school teachers lead their classes in the post 1954 version of the Pledge of Allegiance (which includes the words "under God") it is doing both of these things. Newdow can point to the fact that the Pledge was changed in 1954 due to a lobbying campaign by, among others the Knights of Columbus, to draw attention to the difference between God-fearing Americans and the godless Soviet Union.

The best response to this argument is that when government officials lead the post-1954 version of the pledge, they are neither engaging in religious activities nor are they encouraging citizens to affirm particular religious beliefs. They are not engaging in religious activities because the inclusion of the words "under God" does not make the Pledge religious in character any more than the inclusion of the words "In God We Trust" makes the distribution of coinage or currency a religious activity. They are not encouraging others to affirm particular beliefs because the Pledge does not assert the religious belief that God exists but merely acknowledges a historical association between patriotism and belief in God.

The first response, that no religious ceremony is occurring, is quite plausible. The second argument-- that there has been no endorsement of religious belief-- is quite tricky to pull off. One embarrassment is that many people who support the use of the words "under God" in the pledge do so precisely because they like the association of patriotism with religion and with belief in God: they want to affirm that the United States is a country that believes in God and places itself under Divine protection. However, this is not a theory that the Supreme Court can adopt. The most basic principle of Establishment Clause jurisprudence is that the state is not supposed to prescribe what is orthodox in matters of belief about religious questions.

Rather, the Supreme Court must come up with a way of arguing that the use of term "under God," despite the legislative history, has nothing whatsoever to do with affirming or endorsing particular beliefs about God but is purely ceremonial. In the alternative, they must show that it is a permissible form of "ceremonial Deism" that has no strongly religious overtones and carries no religious endorsement in the eyes of a reasonable person. Put another way, the Court must come up with a justification that insists, without directly saying so, that people who support the post-1954 Pledge because they think it endorses their religious beliefs are simply being unreasonable. In part this is because, as I pointed out last year, ceremonial Deism tries to have it both ways: it seeks to satisfy the religious sentiments and traditions of a large portion of the public while denying that anything particularly religious is going on. It can do this because the expression "under God" seems rather plain vanilla to most members of the public (that is, to those who are not atheists). If the words "under God" were changed to read "under Jesus Christ," or "under God whom we all believe in and adore" the religious meaning would no longer be backgrounded and the Court would not be able to accept the pledge as a form of ceremonial Deism. It is no accident that at the oral argument Solicitor General Olsen agreed that if the pledge included the words "under Jesus" it would go too far. The phrase "under God" is just bland enough to mean nothing to those who want it to mean nothing and to mean everything who want it to mean everything.

Mr. Dooley once said that the Supreme Court follows the election returns. That is, the Supreme Court never strays too far from the views of a national political majority. This case is a perfect example. Even without reading the briefs, it is all but certain which way this case will come out. As Tina Turner might say, what's law got to do with it?



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