Cover Story


Liberals discover judicial restraint and join a unanimous Supreme Court in deciding . . . to decide another day . . . on the politically volatile issue of the Pledge of Allegiance

Issue: "One nation under God," June 26, 2004

Fireworks aren't usually associated with Flag Day. So it seemed appropriate, somehow, that the Supreme Court settled its most controversial case of the year with a whimper rather than a bang.

In a decision handed down on June 14-Flag Day, ironically enough-the justices struck down a federal appeals court decision that the phrase "under God" in the Pledge of Allegiance violates the separation of church and state. The unanimous ruling means that for the time being, at least, millions of schoolchildren can continue reciting the pledge without judicial editing.

"By dismissing this case," said Jay Sekulow of the American Center for Law and Justice, "the Supreme Court has removed a dark cloud that has been hanging over one of the nation's most important and cherished traditions-the ability of students across the nation to acknowledge that our freedoms come from God, not government."

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But while conservatives saluted the outcome of the case, they warned that the court's narrow legal reasoning all but guaranteed continued controversy in the future. Rather than rule on the merits of the case, a majority of justices simply decided that Michael Newdow, the California atheist who sued to bar the pledge from public schools, had no right to bring his case in federal court.

In other words, the pledge might still be found unconstitutional if the secularists can simply find a plaintiff with the constitutional right to sue.

For the moment, the pledge survives intact only because Dr. Newdow, a physician and attorney, does not have legal custody of his daughter, on whose behalf he claimed to sue the Elk Grove Unified School District in California. He said his right to direct his child's religious instruction was violated by the daily recitation of a pledge that acknowledges God.

The 9th Circuit Court of Appeals agreed. In a decision that sparked nationwide outrage, the court held that teachers leading their young pupils in the Pledge of Allegiance amounted to state sponsorship of religion. Although students could technically refuse to utter the offending words "under God," peer pressure would make it awkward for them to do so. Thus, the court said, parents who wished to raise their children as atheists would find their efforts thwarted by a seemingly innocuous daily rite.

As the case went before the Supreme Court, polls showed 90 percent of Americans believed that "under God" should remain part of the pledge. The issue became a political lightning rod, with nearly every member of Congress urging the high court to overturn the California decision. But while both parties expressed outrage, Republicans clearly had the most to gain, thanks to the party's consistent opposition to the sort of liberal jurisprudence exhibited by the 9th Circuit. Democrats worried openly that the pledge case might cost them votes, especially in Midwestern battleground states and in the South.

With the political stakes so high, not one member of the Supreme Court was willing to go on the record against the phrase "under God." Three of the more conservative justices specifically defended the current wording of the pledge, but five others avoided the issue altogether by ruling that Dr. Newdow had no right-or "standing"-to sue.

"In my personal opinion, I think the liberal justices did not want to hand George W. Bush a huge weapon to use against John Kerry," said Jordan Lorence, senior counsel at the Alliance Defense Fund, a conservative legal alliance that filed a brief defending the pledge. "It was easier to punt this issue for a future day rather than risk looking down the bench and finding more conservative colleagues sitting next to them in the future."

In order to avoid the highly charged church-state issue, liberal justices found themselves in the uncomfortable position of urging judicial restraint. For decades, liberals have viewed the federal courts as the last, best hope of those who lack the clout to sway elected lawmaking bodies. Activist judges looking to affect public policy routinely accept cases that more conservative judges would prefer to leave in the hands of state courts and legislatures.

It was ironic, then, when Justice John Paul Stevens, perhaps the most liberal member of the Supreme Court, slyly quoted conservative theorist Robert Bork in his majority opinion, arguing that the "unelected, unrepresentative judiciary in our kind of government" should be hesitant to grant standing to every plaintiff that comes along.

Dr. Newdow lacked standing, Justice Stevens ruled, because state courts in California had awarded custody of the child to her mother, Sandra Banning. As the custodial parent, it was up to Ms. Banning-not Dr. Newdow-to direct her daughter's education.


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