Jeers to Justices Stevens, Kennedy, Souter, Ginsburg and Breyer for their cop-out in the Pledge of Allegiance case, Elk Grove Unified School District v. Newdow.
It matters nothing to the American people whether atheist Michael Newdow has proper custody of his daughter. This is not some narrow issue that applies only to her.
The words “under God” were added to the Pledge in 1954 by a bill sponsored by Rep. Louis Rabaut, Democrat of Michigan, who said (quoting Justice Rehnquist) "its purpose was to contrast this country's belief in God with the Soviet Union's embrace of atheism.” Rehnquist goes on to quote several oaths with “God” in them and several presidents, from Washington to FDR and Eisenhower, who invoked God. He argues, “All of these events strongly suggest that our national culture allows public recognition of our Nation's religious history and character.”
But that is not a constitutional argument. It is an appeal to the national culture.
Justice Thomas is the most interesting. He argues that asking kids to say "under God" in tax-supported schools has established a religion. Judging from recent cases, Thomas says, “under God” is unconstitutional. Then he goes on to say that the recent cases are wrong.
Thomas’s opinion says that the clause forbidding the establishment of religion does not apply to state governments, several of which had an established church when the Constitution was ratified. And since a state (California) and not the federal government asked Newdow’s daughter to recite the Pledge, you would have to look to the state constitution.
I don’t know about California’s constitution. Our constitution says, in part, “No public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or the support of any religious establishment,” except that the state can hire certain chaplains.
I don’t think that forbids the Pledge, because saying the Pledge doesn’t require any money. Still, it is a government loyalty oath, defined and made universal by Congress, and it does ask (but not require) a statement that invokes the authority of God.
Historical or not, I think the Court should have thrown it out.
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