Justice Antonin Scalia recused himself from the Pledge of Allegiance case after saying publicly he believed the words "under God" were constitutionally permissible. Now, some members of Congress are close to demanding that Justice Scalia's colleagues permanently recuse themselves from all such cases in the future.
"Some courts, led by the U.S. Supreme Court, have demonstrated a clear and unmistakable hostility toward religious expression in the public square," said Sen. John Cornyn (R-Texas) at a June 8 hearing of the Senate subcommittee he chairs.
The hearing, "Beyond the Pledge of Allegiance: Hostility to Religious Expression in the Public Square," was a clear shot across the bow of the high court. Witnesses ranged from Nashala Hearn, a 12-year-old Muslim girl forbidden to wear her head covering at school, to Roy Moore, the Alabama chief justice who lost his job for displaying the Ten Commandments.
Whatever their stories, the gist of the testimony was the same: Federal courts have overstepped their bounds in trying to expunge religion from public life. If the courts can't rein themselves in, several lawmakers testified, Congress should step in.
Sen. Mary Landrieu (D-La.) touted her constitutional amendment declaring that government references to God do not violate the separation of church and state. Sen. Richard Shelby (R-Ala.) went even further. His Constitution Restoration Act would reserve issues of religious expression to the states, effectively barring the federal judiciary from interfering in disputes ranging from prayer at football games to manger scenes at Christmastime. Seven other senators have joined Mr. Shelby in sponsoring the bill.
One member of the Supreme Court is willing to go along, in principle. In his dissent in the pledge case, Justice Clarence Thomas proposed that the First Amendment's prohibition against "establishing" an official religion applies only to the federal government, not the states. That would allow state governments to decide the limits of legal religious expression, free of interference from the federal courts.
Legal scholars note that such interpretations have been around for more than half a century, and the high court is unlikely to rush to Justice Thomas's side. Still, pressure seems to be building, both inside and outside the court. With frivolous suits like the one seeking to remove "under God" from the pledge, secularists may push public opinion to the breaking point.