The Battle Over the Pledge
Nor has anybody stepped back to ask, Do we really need this Pledge of Allegiance, and if so, why? Frankfurter and Jackson posed and answered this question--in wartime, too--and on March 24 the Justices will take it up again. In my opinion the Pledge deserves to be shorn of its quasi-sacrosanct status as well as of the "under God" phrase, but I may be a minority of one.
Fundamentalist Christians and their friends in Washington are keen to have Newdow heard precisely so they can discredit the secular presumptions they detest and affirm the kind of belief Scalia cherishes. One fears they may want to use the case as a lever to shift the balance; once the Supremes assure them that the Pledge with "under God" in it is constitutional, then local teachers and politicians sympathetic to them might try to amplify it into more openly Christian, even Jesus-specific, formulations. They have a President in the White House who listens to them, a Justice Department sympathetic to their aims, a Solicitor General who is close to some of their principal agents--in short, a perfect political situation in which to further their cause.
For the Bushies and the religious right, Newdow is a perfect opponent, and they're piling on. He's an atheist and proud of it; he didn't marry his daughter's mother and didn't have custodial rights when he started his litigation; moreover, the mother, Sandra Banning, is an evangelical Christian who says her daughter doesn't mind the Pledge. While Newdow's initial case was wending its way through courts in various jurisdictions, he created a legal tangle over parental rights; when the California school district where his daughter is a pupil appealed Judge Goodwin's ruling, it also challenged Newdow's standing to have a say in her education. The Supreme Court ordered briefs and argument on that issue, and asked Solicitor General Theodore Olson to file an amicus brief in the school district's case.
Thus far, Olson has argued that the "under God" phrase in the Pledge is an "official acknowledgment of our nation's religious heritage," analogous to "In God We Trust" on coins and bills. Here we go again: This is the "ceremonial deism" or "historically verified foundationalism" that Scalia approves of for his own dark reasons and that Brennan and Douglas accepted. Olson adds, in a sleazy bow to creationists, that the Pledge phrase can't be any more offensive to some pupils than teaching modern science is to others: "Public schools routinely instruct students about evolution, war and other matters with which some parents may disagree on religious, political or moral grounds."
Thank the lord, though (as we say), Justice Scalia is out of the picture. Speaking at a Religious Freedom Day rally organized by the Knights of Columbus in Fredericksburg, Virginia, a year ago, he derided the Ninth Circuit's Newdow decision as an example of constitutional misinterpretation. Justices aren't supposed to comment on cases that might come before them on which they haven't yet heard full briefs and arguments, so Newdow requested that he recuse himself, and Scalia agreed. We know about the cases from which he refuses to recuse himself; perhaps he has calculated that this one is safe without him.
Secular liberals and church-state separationists supporting Newdow gloomily anticipate that, yes, the Court will uphold the school district's appeal. Twenty groups, including People for the American Way, the ACLU, and Americans United for Separation of Church and State, have gamely filed amicus briefs for Newdow and will watch warily as this peculiar father argues his own case, but for them, it's a pain in the neck: They have gay marriages and abortion rights to worry about; even if a godly Pledge is entrenched in our schools as a patriotic litmus test, they think of this as fighting a major battle on a minor front.