It now looks like the Supreme Court will no longer be able to dodge the issue about the Pledge of Allegiance's "under God" clause the way it did last time round. A federal District Court judge has ruled that requiring schoolchildren to recite the Pledge with that clause violates their right to be "free from a coercive requirement to affirm God." Though the mover behind the suit was the same atheist, Michael Newdow, whose case the Supremes threw out on the ground that he had no legal standing to do so on behalf of his biological child, Newdow has got round that problem by bringing a group of custodial parents into the latest suit. So if, as is likely, the Ninth Circuit upholds the latest ruling, the case will once again be appealed to the Supreme Court.Maybe I'm naïve, but the ruling seems absurd to me on the merits. If it's unduly "coercive" to require recitation of a phrase that is fully in keeping with the explicit language of the Declaration of Independence about God, in whom the vast majority of citizens believe, then why is not at least as unduly coercive to require pledging allegiance to a "flag" and asserting that there is "liberty and justice for all"? The former requires veneration of a mere symbol, not of God, and the latter is arguably if not clearly false. If we're going to leave God out of the Pledge for the reason given, we had better ditch the whole Pledge for consistency's sake. Maybe that's what some people want after all; but if that's what ends up happening someday, they had better come up with a better way to instill proper love of country in children, or this country will be in even bigger trouble than it is.
Of course, maybe nothing much will happen. Maybe the Supreme Court will dodge the bullet this time by just refusing to hear the appeal. That would be understandable if pusillanimous. For the past half-century at a minimum, the Court's jurisprudence on matters of religion and the state can charitably be described as incoherent. In its attempt to balance the free-exercise and anti-establishment clauses of the First Amendment, the Court has succeeded only in undermining the former without giving a clear sense to the latter. The Framers intended both only as a means of preventing the federal government from legislating or encroaching on what the states chose to do about religion. The Court would have done better, purely from the standpoint of intellectual respectability, to stick with that. This is where the originalists have an unassailable point.
When this latest case is appealed to the Supremes, John Roberts will be Chief Justice. As a good Catholic, he gives reason to hope that he will at least understand the importance of taking the case on the merits and using it to clear up the mess. As a member of the Catholic men's organization that led the campaign to get Congress to adopt the "under God" clause back in 1954, I sure hope so.
