Tuesday, June 15, 2004

The Supreme Court Decides Not To Decide

It’s fun but not too enlightening to read the Supreme Court’s tea leaves. When the Justices are obscure, as they often are, it’s not because the nine eminences are teasing the rest of us who must solve the puzzle that they have concocted. More likely, they haven’t figured out what they want to decide and they buy time through one device or another, including procedural copouts.

That’s what has just happened in the Pledge of Allegiance case, as five of the nine played chicken by ruling that Michael Newdow does not have standing to challenge the inclusion of “under God” in the Pledge on behalf of his daughter because he does not have full legal custody of her. This despite lower court rulings that under California law – where the girl lives – Newdow has sufficient custody to bring the suit. The Pledge and the two terrible words are safe, at least until the next challenge, presumably initiated by a parent whose custody is unchallenged. Maybe then the Justices will tell us whether an innocuous reference to a Supreme Being subverts our Constitutional system.

We are likely to learn down the road what went on in the present case, why it took months for the Court to produce four uninspired opinions that lead to nowhere. Proponents of the Pledge are claiming victory since the status quo has been maintained and millions of schoolchildren can continue to recite the unexpurgated version. We know that three Justices who reached the constitutional issue believe that the First Amendment does not preclude innocent language that strongly resembles what is publicly announced at the start of every session of the Supreme Court.

There is a sure fourth vote on the side of religion, it being that of Justice Scalia who recused himself because of incautious public remarks about the case that were uttered before he listened to the arguments of Newdow that he wasn’t going to listen to in any case. It seems that the Supreme Court’s code of etiquette regards public utterances about a pending case as a more serious violation than duck hunting with the Vice President who is a party in a case that is now before the Court.

The five Justices who ducked the issue preface their procedural ruling with an expression of how the Pledge of Allegiance serves as a unifying symbol for the nation. Their words may indicate that “under God” is kosher, although if any of the five feels this way, it is hard to figure out why he did not vote. The Pledge issue is straightforward and does not require additional legal research or fact-finding and we already have a good idea of what the public thinks. It could be that the High Court is split, perhaps sharply, and a majority of the Justices believe that it is prudent not to issue a ruling in a hot-button case during a heated presidential campaign.

Irrespective of whether the Pledge ultimately passes constitutional muster, the case points to the increased vulnerability of religion when judges rule on its place in the public square. Of the four opinions, Justice O’Connor’s strikes me as the strongest. She makes the interesting point that while “citizens of this Nation have been neither timid nor unimaginative in challenging government practices as forbidden establishments of religion,” in the fifty years that “under God” has been included in the Pledge, this is only the third legal challenge to its constitutionality. She concludes that it is “telling that so little ire has been directed at the Pledge.”

It is also telling that a solitary atheist motivated by animosity toward religion can get judges to give weight to a constitutional argument that had not been previously advanced in any serious way, not even by the usually alert and aggressive guardians of the First Amendment, such as the ACLU. We are at the point when courtrooms have been transferred into nesting places for anti-religious sentiments.

If the Pledge survives intact, as I believe it will, it will be because the two terrible words are being re-marketed in Justice O’Connor’s phrase as “ceremonial deism,” as a slogan that is explicitly labeled as not intended to convey religious sentiments. We will speak about history and tradition and about how the words “under God” do nothing more than give solemnity to public occasions and unite Americans.

As the judiciary locates new civil rights and liberties that limit the role of religion, there are competing and even antithetical developments elsewhere in our governmental system. President Bush does not beat around the bush in proclaiming that he is religious and his administration is religious and his agenda is informed by a religious sensibility. For more than three years, the White House has steadily looked for ways to advance the goals of the Christian Right.

What has emerged at the governmental level might be regarded as extreme bi-polarity. The Executive branch and the House of Representatives lustily sing Onward Christian Soldiers and other variations of a religious theme, while federal courts circumscribe the place of religion. This is one manifestation of the dualism in contemporary American life. At once, gay marriages are being legitimated and religious messages are being sent out by government. We are a badly polarized country and the center, vital or not, is being eroded.

The Supreme Court has too often added fuel to America’s ideological fires, serving as a divisive force rather than as an instrumentality for greater unity. This has been true of the Rehnquist Court, particularly its infamous ruling on the 2000 election. By not ruling on the Pledge, the Justices missed an opportunity to create greater unity on an issue where there already is a large consensus that favors “under God.” Newdow’s lawsuit opened a wound and now it remains open because the Justices did not fulfill their responsibility to decide.