ONE NATION Kept In Suspense

Supreme Court Ducks Ruling On 'Under God' in Public School Pledge Recitations

It was one of the most closely watched church-state cases in Supreme Court history: a legal challenge to the inclusion of the phrase "under God" in public school recitations of the Pledge of Allegiance.

As the high court's 2003-04 term wound down last month, legal observers and reporters eagerly awaiting the ruling began packing the court's pressroom every Monday, a day when decisions are usually issued. Since the justices do not announce in advance which opinions they will release, those following the case simply had to show up and hope for the best.

On June 14 the decision was finally cut loose, but it proved to be something of a letdown.

Instead of a definitive decree on the constitutionality of the Pledge's religious language, the court voted 5-3 to throw out the entire legal challenge, with the majority saying the man who brought the case never had a right to sue to begin with. After two years of controversy and often highly emotional debate, the headline-capturing Elk Grove Unified School District v. Newdow case evaporated in an instant.

The court majority held that Michael A. Newdow, a Sacramento emergency room physician who brought the challenge on behalf of his daughter, lacked the legal right to file the lawsuit. The majority noted that Newdow, who never married the girl's mother, is not the child's primary caregiver and has only partial custody. According to the high court, that wasn't enough to ensure Newdow his day in court.

"When hard questions of domestic relations are sure to affect the outcome, the prudent course is for the federal court to stay its hand rather than reach out to resolve a weighty question of federal constitutional law," wrote Justice John Paul Stevens.

Stevens confined his 15-page opinion entirely to the issue of Newdow's right to sue. Because he and four other justices concluded that Newdow did not have "standing," they saw no need to look at the meat of the issue: whether the use of "under God" in public school recitations of the Pledge violates church-state separation.

Americans United Executive Director Barry W. Lynn said he regretted that the court failed to address the issue.

"I am disappointed with the court's action," said Lynn. "Students should not feel compelled by school officials to subscribe to a particular religious belief in order to show love of country. America is increasingly diverse in matters of religion, and our public schools should reflect that diversity."

Lynn said the Pledge case raised important issues that the court should have dealt with. He added that he believes the issue will resurface sooner or later.

"The justices ducked this constitutional issue today, but it is certain to come back in the future," Lynn said.

Even though the majority bypassed the constitutional issue, three justices felt compelled to explain why they believe "under God" in the Pledge does not amount to government-sponsored religion.

The three, Chief Justice William H. Rehnquist along with Justices Sandra Day O'Connor and Clarence Thomas, argued that references to God are common in American history and thus "under God" in the Pledge does not rise to the level of a constitutional violation.

Listing examples of the use of religious language by government, Rehnquist asserted that "our national culture allows public recognition of our Nation's religious history and character." The religious reference in the Pledge, Rehnquist insisted, "is in no sense a prayer, nor an endorsement of any religion" but is merely a recognition of the assumption that the country was founded on belief in God.

"Reciting the Pledge, or listening to others recite it, is a patriotic exercise, not a religious one; participants promise fidelity to our flag and our Nation, not to any particular God, faith, or church," he wrote.

O'Connor put forth a similar argument.

"In my view," she wrote, "some references to religion in public life and government are the inevitable consequence of our Nation's origins.... 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 the ties to a history that sustains this Nation even today."

O'Connor argued that these religious references are benign examples of "ceremonial deism." The use of "under God" in the Pledge, she asserted, does not endorse a specific religion and is made in passing as part of a larger, mostly non-religious, ritual. Students who object, she noted, may remain silent when those words are spoken.

The views put forth by Rehnquist and O'Connor reflect a line of thinking, not uncommon in the federal courts, that certain types of generic and ceremonial uses of God and religion are permissible in government discourse. Thomas, however, decided to drive the argument over a cliff. He argued that the high court should have used the case to fashion a new understanding of separation of church and state. At the bottom of Thomas' academic-sounding legal jargon was a truly radical proposal: He recommended obliterating the wall of separation between church and state and allowing state governments to favor certain religions over others, even permitting them to name official religions.