The "Under God" case ended not with a bang, but a whimper. It was
decided on a technicality, leaving a bad taste in the mouth of anyone
hoping for the final word on this very difficult question.
A majority of the justices decided that Michael Newdow, the California
Atheist who objected to his daughter reciting the Pledge of
Allegiance, did not have "standing" to sue the School Board. What
does this mean? It means that it is as if none of this ever happened.
Since Newdow did not have the right to bring the lawsuit in the first
place, the lawsuit is dismissed. Most significantly, the decision of
the 9th Circuit Court of Appeals holding that the pledge violated the
constitution is vacated. But we still have no answer to the question
whether the State of California, by forcing children to repeat the
words "under god" every morning, violates the establishment clause of
the First Amendment.
What may seem like a big cop is actually an interesting look
into the workings, or perhaps disfunctionalities, of the current
My analysis starts with the observation that, except for certain rare
instances, the Supreme Court chooses which cases it wants to hear.
The Supreme Court is asked to decide tens of thousands of cases every
years, and chooses about a hundred, sometimes less. So the first
question to ask is "why did the Supreme Court decide to hear this
case?" The answer is usually because the case presents an important
issue to be decided. Most of the time, the issue is more important
than the case itself. We have all heard of the Miranda warnings.
Miranda is the name of some guy who was arrested (and not read his
rights). The Supreme Court heard his case and the rest is history.
Nobody knows (or cares) what happened to Miranda -- his case wasn't
all that important -- but the issue to be decided was.
So when the Supreme Court decided to hear Newdow's case, it was pretty
much assumed that it would have something important to say about the
separation of State and Religion. But it didn't. The only decision
the Supreme Court made was not to make a decision. And the reasons it
decided not to make the decision don't seem to be all that
So why did the Supreme Court decide that it was important to hear this
case if it was only going to decide not to decide? Remember that the
9th Circuit Court of Appeals had decided that the Pledge of Allegiance
was unconstitutional. What this meant was that if the Supreme Court
didn't do something, then the decision of the Circuit Court would
stand, and the Pledge would be outlawed for the part of the Country
covered by the 9th Circuit, which includes California. Now THAT would
be a problem, and this was a case that called out for the Supreme
Court to decide. I think we can all agree that the Pledge of
Allegiance should be the same in California as it is in New York or
Illinois or Florida or Texas. Well, maybe not Texas.
It seems pretty plain that although the Court could agree that it had
to decide the case, they couldn't decide on how it should be decided.
There are nine justices on the Court. If five agree, then there is a
decision. Scalia abstained from hearing the Newdow case, leaving
eight. Does this mean that there was a 4-4 tie on the "under God"
language? Not necessarily. A tie would leave the Circuit Court
decision standing, and since there is little doubt how Scalia would
rule on this issue, if four justices wanted to rule that the "under
God" language was unconstitutional, they probably would have jumped on
the opportunity to decide the issue without Scalia.
We know that three of the justices really wanted to decide the big
issue. Rehnquist, O'Connor and Thomas all wrote separate opinions
explaining why they thought that the "under God" language did not
violate the Constitution. Here's a question -- why did they express
their views on a subject that was not up for decision? Once a
majority voted that the issue could not be decided, there was no
reason to address the issue at all.
Rehnquist and O'Connor wrote dry, very forgettable opinions
essentially expressing the view that the words "under God" were not
religious enough to implicate the constitution. This view, which
might be regarded as the conventional wisdom on the subject, simply
begs the question. If the phrase is so insignificant, why does it
invoke so much emotion and such an outpouring of opinion? Why not
"under Allah" or "under Chango?" An interesting side note: What if we
took a poll and asked how many people agreed that we are "one nation
under God." And then we asked how many people agreed that we are "one
nation under Allah." Would the results be the same? Why not?
Justice Thomas is another matter altogether. He's so off the wall,
it's weird, it's scary, and I'm not sure if he's a genius or a
psychopath. He's not conventional and he's not boring, and this much
I admire. Thomas first observed that if the Court were to apply
established precedent, then there would be no way to avoid holding
that the pledge were unconstitutional. So far so good, but we know
he's just setting us up for something. He goes on to express the view
that the so-called "anti-establishment" clause of the first amendment
only prevented Congress from interfering with official religions
established by the separate states. In other words, under Thomas's
view, States could establish official religions, and the Federal
government would be prevented by the constitution from doing anything about
it. Wanna live in Utah? Better be Mormon.
Weird? Scary? I told you so.
Don't lose any sleep over it. None of the other Justices agreed with
Thomas. He's just a voice in the desert. At least for now.
But let's look at this another way. Doesn't the right wing complain
all the time about judicial activism? Look what Thomas wrote:
At the beginning of his opinion, he wrote: "I would take this
opportunity to begin the process of rethinking the Establishment
Opportunity? A majority of justices vote that there is nothing to
decide, and Thomas sees it as an opportunity to give a gratuitous
opinion as to the meaning of the constitution?
But it gets worse. At the conclusion of his opinion, Thomas writes:
"I would welcome the opportunity to consider more fully the difficult
questions whether and how the Establishment Clause applies against the
This is the closest a Supreme Court Justice can get to advertising for
cases. I don't know, sure seems like judicial activism to me.