- The Washington Times - Wednesday, July 3, 2002

Ten years ago, in a case called Lee vs. Weisman, the Supreme Court decided that a state may not sponsor prayers long customary at middle or high school graduation ceremonies, invocations and benedictions not even when the saying of those prayers is rotated among representatives of a community's various faiths.
But the five justices certain of the unconstitutionality of such prayers made no comment on the fact that, right before the invocation was uttered (by a local rabbi), the students at Nathan Bishop Middle School in Providence, R.I., stood and said the Pledge of Allegiance. Now, the pledge, you may know, happens to contain those two little words, "under God."
In dissent, Justice Antonin Scalia noted that the students had indeed said the pledge, and he proceeded to examine that fact in light of the reasoning advanced in the majority opinion.
Under the First Amendment's establishment clause, wrote Justice Anthony Kennedy for the court, "government may not coerce anyone to support or participate in religion or its exercise, or otherwise to act in a way which establishes a state religion or religious faith, or tends to do so." The graduation prayer, Justice Kennedy concluded, flunked the coercion test.
But so, contended Justice Scalia, would the pledge: "If students were psychologically coerced to remain standing during the invocation, they must also have been psychologically coerced, moments before, to stand for (and thereby, in the court's view, take part in or appear to take part in) the pledge."
Justice Scalia then asked: "Must the pledge therefore be barred from the public schools?"
Last week, the 9th U.S. Circuit Court of Appeals answered that question in the affirmative. The country still is shaking with outrage, and, with the nation at war, no politician is eager to speak in favor of the 2-to-1 decision in Newdow vs. United States.
But Newdow, while wrongly decided, isn't an implausible application of decisions by the Supreme Court, the Lee case in particular. Newdow is shocking because until now no federal appeals court has seen fit to say that references to God, whether in the pledge or on our coins or in our state mottoes, are unconstitutional. A district court here or there has said that. But the fact that an appeals court now has said so means that the strict separationist project of eliminating all such references needs only one more decision to achieve its goal a decision by the nation's highest court.
Conventional wisdom holds that the Supreme Court would conclude that the pledge is not unconstitutional. But as Justice Scalia showed in the Lee case, the court has articulated doctrine that it could use to rule against the pledge. The doctrine, moreover, isn't just of one kind. Indeed, what is striking about the 9th Circuit's decision is that it examined the pledge under no fewer than three tests the Supreme Court has used in recent decades to decide establishment-clause cases. What sane person would deny that five justices might use one or more of the doctrines to say "under God" is, constitutionally speaking, too much?
Of course, the Supreme Court might not get to Newdow. The full 9th Circuit has been asked to review the decision, and in the event of an overruling, the matter could end there, as a sort of summertime excitement. But if the 9th Circuit decides against the pledge, the Supreme Court would be confronted with a conflict in the circuits, since the 7th Circuit has said that "under God" is OK. The Supreme Court almost certainly would take the case.
In that event, one must hope that the court would recognize the perverse implications of its First Amendment precedents. The case could well turn on the deliberations of Justices Kennedy and Sandra Day O'Connor, author of the so-called endorsement test, which also threatens the pledge. For both justices, Newdow would raise the question of whether what they once wrote is really what they meant.
Should they have second thoughts, the court might develop, at last, some badly needed First Amendment doctrine. It would be doctrine, consistent with the text and history of the Constitution, that distinguishes between real establishments of religion and phantom establishments, such as the inscription of "In God We Trust" on our coins or the inclusion of "under God" in the pledge. Such doctrine, by permitting the appropriate accommodation of religion in public life, would put an end to basically frivolous cases like Newdow vs. United States.

Terry Eastland is publisher of the Weekly Standard.


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