The so-called Pledge of Allegiance case is over, and the Supreme Court managed to scrape by without having to do anything. The high court today published its decision in the case Elk Grove Unified School District v. Newdow (02-1624). Newdow was suing on behalf of his daughter, arguing that the phrase "under God" in the Pledge of Allegiance was unconstitutional. In an 8-0 decision (well, sort of -- 5 members agreed with both the outcome of the case and the rationale, while 3 agreed with the outcome but disagreed with the rationale), every member of the Court chickened out and agreed that, since Newdow did not have legal custody of his daughter, then under California state law, he had no standing to bring the suit. The suit was dismissed altogether. Justice Scalia recused himself from the case, since he publicly declared his opposition to the Ninth Circuit's decision a few weeks after it was announced, in 2002.

Bah! Rather than upset a good portion of the nation, the Supreme Court found a way to weasel its way out of making any kind of decision. It didn't say Newdow was correct; nor did it say he was incorrect, instead ruling on a procedural technicality. While Newdow would be able to bring a suit as his daughter's "next friend," the next friend must be someone who shares the petitioner's interest in the case. In this instance, "the interests of this parent and this child are not parallel and, indeed, are potentially in conflict," wrote Justice Stevens, delivering the majority opinion. Though Newdow may want to have an interest in his child's upbringing, the question of the mother's decisions are also at issue. The girl's mother, Sandra Banning, disagreed with the suit, and "a state-court order granted her 'exclusive legal custody' of the child, 'including the sole right to represent [the daughter's] legal interests and make all decision[s] about her education' and welfare." As interested as Newdow may be, he has no legal standing to bring the case in the first place. The majority opinion didn't say a word about the constitutionality of the Pledge of Allegiance.

In various concurring opinions, the justices weigh in on the constitutionality issue. Chief Justice Rehnquist introduces his opinion by observing, "The Court today erects a novel prudential standing principle in order to avoid reaching the merits of the constitutional claim"; that is, the court skirted the issue by simply ruling that Newdow had no standing to bring the suit in the first place. Rehnquist decided that the issue -- which, by the way, is whether or not teachers must lead willing students in the Pledge -- is constitutional. Rehnquist writes that he does "not believe that the phrase 'under God' in the Pledge converts its recital into a 'religious exercise.'" His reasoning, though, is a bit dubious:

The Constitution only requires that schoolchildren be entitled to abstain from the ceremony if they chose to do so. To give the parent of such a child a sort of "heckler's veto" over a patriotic ceremony willingly participated in by other students, simply because the Pledge of Allegiance contains the descriptive phrase "under God," is an unwarranted extension of the Establishment Clause, an extension which would have the unfortunate effect of prohibiting a commendable patriotic observance.

This reasoning only works if you believe that the phrase "under God" doesn't turn the Pledge into a coercive religious exercise. Justice O'Connor and Justice Thomas joined Chief Justice Rehnquist, but filed separate concurring opinions. Rehnquist gives examples of half a dozen government officials, from George Washington to Abraham Lincoln to Woodrow Wilson, who all mentioned "God" while making official speeches. Having "Under God" in the Pledge of Allegiance is merely an acknowledgment "that our national culture allows public recognition of our Nation's religious history and character. In the words of the House Report that accompanied the insertion of the phrase 'under God' in the Pledge: 'From the time of our earliest history our peoples and our institutions have reflected the traditional concept that our Nation was founded on a fundamental belief in God.'" While this may be tradition, it is not law. The Constitution says that the law comes from it, and not from God. In fact, it expressly forbids the state from taking any side in the issue of whether or not there is a higher being ("Congress shall make no law respecting an establishment of religion").

Rehnquist calls for an interesting test to determine whether or not "under God" is constitutional:

There may be others who disagree, not with the phrase "under God," but with the phrase "with liberty and justice for all." But surely that would not give such objectors the right to veto the holding of such a ceremony by those willing to participate. Only if it can be said that the phrase "under God" somehow tends to the establishment of a religion in violation of the First Amendment can respondent's claim succeed, where one based on objections to "with liberty and justice for all" fails.

The only problem with this test is that a person who wants to object to "liberty and justice for all" has no objection in the courts. Where is the law which prevents the state from promoting patriotism? There is no such law; however, there is a law under which someone who objects to "under God" could make a case. This is, of course, the First Amendment.

Justice O'Connor, concurring, opted for the "ceremonial" approach -- namely, that the use of "God" in public ceremony is an acknowledgment of history. No one can argue (without benefit of strong drugs) that the founders of this country didn't believe in God, and references to God like those found in the Pledge merely refer to this past:

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.

O'Connor differentiates ceremonial deism from actual prayer, and says that only a prayer can be "an establishment of religion." Her argument amounts to, "Well, we're all Christians, anyway, so what does it matter?" It's difficult to imagine a locality where such a benediction would be inappropriate, since Jews, Christians, and Muslims would be the ones in power anywhere in this country -- and they all share the same belief in a single god; in fact, He is the same god in each instance!

None of the justices deals with the fact that the original Pledge of Allegiance had no reference to God in it. Francis Bellamy, cited as the author of the Pledge of Allegiance (although it may have been authored by a committee), did not mention God in the original version. The original version read thus: "I pledge allegiance to my Flag and the Republic for which it stands: one Nation indivisible, with Liberty and Justice for all." It wasn't just a simple mistake that the "ceremonial" deity was left out. The Pledge was presented for the first time at the World's Fair in Chicago in 1892. It was made the national Pledge in 1945, but "under God" didn't become a part of it until 1954! Historians agree that "under God" was added during the Red Scare of the 1950s as something else which we could unite under against the Godless Communists. "Under God" was not ceremonial; rather, it was intended to be divisive, to separate the God-inspired "us" from the hateful "them."

But there will be other cases, brought by people with better standing. No harm, no foul for the country. This time.