By M. Thorne
In the case of Newdow v. U.S. Congress the Ninth Circuit Court of Appeals ruled that Congress violated the First Amendment to the Constitution when it added “under God” to the Pledge of Allegiance in 1954.  The Newdow ruling was as controversial as the Supreme Court’s ruling in Roe v. Wade in 1973, when the High Court found an unwritten right to abortion buried in the Fourteenth Amendment. It was as controversial as the Court’s 1954 ruling in Brown v. Board of Education that overturned Plessy v. Ferguson, the 1896 ruling that made “separate but equal” the law of the land.
When the Newdow ruling was announced, the public was shocked. Within minutes the ruling was condemned. Pundits and politicians denounced it. Later that afternoon members of Congress were on the steps of the Capitol, reciting the pledge, emphasizing the controversial phrase, pledging a constitutional amendment—if it became necessary—to keep the pledge just as it had been for almost 50 years.
Hardly anyone thought such action would be necessary. That evening, news shows were full of experts who assured the public that the Newdow ruling would be appealed to the Supreme Court. The nation’s highest court would set things straight; it would certainly overturn the ruling. Pundits and politicians competed for time on TV to express their gut-level reaction that the ruling was ridiculous, nuts, bizarre, and stupid. Hardly noticed were those constitutional scholars who, after reviewing the ruling, said it was a good ruling, that it was carefully based on previous Supreme Court rulings. For the High Court to overturn the ruling, they said, it would have to ignore or disagree with many of its own rulings—not a likely prospect.
Of course, we don’t know how the Supreme Court is going to rule on this. It might overturn the appeals court’s ruling; it might not. We can be sure that, however it rules, it’s going to consider certain things: What does the establishment clause prohibit? What did the Framers intend for it to prohibit? When Congress added the phrase “under God” to the pledge, did it make a law respecting an establishment of religion? Why did it add the phrase?
Let’s examine those things that the Court is most likely to consider. In a subsequent article we will look at what the Supreme Court justices have said about such things in previous rulings. Once we do that, we’ll be in a position to make a reasonable guess as to what the Court’s ruling will be.
What’s Allowed, What’s Not
Our Bill of Rights begins: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Just what does that mean? According to the Supreme Court, what it means is this: Government must be neutral with respect to religion, neither favoring it nor inhibiting it. It must be neutral in its relations with believers, doubters, and nonbelievers; it must not take a stand on religious beliefs or practices. That’s what it means, according to the United States Supreme Court.
How can that be? Neutrality isn’t even mentioned in the First Amendment. It’s easy to look at the religion clauses as two separate and independent clauses, one prohibiting certain types of laws (those respecting religious establishments), the other guaranteeing certain freedoms (to practice religion). It’s the combined effect of the two clauses that requires neutrality.
Consider Abington v. Schempp, decided in 1963. This case was about a Pennsylvania law that said, “At least ten verses from the Holy Bible shall be read, without comment, at the opening of each public school on each school day.” The law also said that schoolchildren were not required to attend the Bible readings. Edward and Sidney Schempp, the parents of children attending school in the Abington school district, where the Bible readings were followed by the Lord’s Prayer and the Pledge of Allegiance, brought suit to end the Bible readings and prayer. The Court ruled in their favor.
The Court reasoned that the law favored Christianity over Judaism, and so it violated the neutrality required by the religion clauses. The Court ruled that religious freedom meant “absolute equality before the law, of all religious opinions and sects.” The Court referred to its ruling in an earlier case, Everson v. Board of Education, decided in 1947, in which it said the combined effect of the two clauses “requires the state to be neutral in its relations with groups of religious believers and nonbelievers.” In Abington one justice wrote, “The state must be steadfastly neutral in all matters of faith, and neither favor nor inhibit religion.”
The one justice who dissented from the Court’s ruling in Abington agreed that the First Amendment required neutrality, the “evenhanded treatment to all who believe, doubt, or disbelieve.” He wrote: “What our Constitution indispensably protects is the freedom of each of us, be he Jew or Agnostic, Christian or Atheist, Buddhist or Freethinker, to believe or disbelieve, to worship or not worship, to pray or keep silent, according to his own conscience, uncoerced and unrestrained by government.” Yet he didn’t agree that Bible readings in public school, some of which contained material that had been described in testimony as “practically blasphemous” to Jews, violated the notion of neutrality. Rather, he wrote that prohibiting religious exercises in public schools was not neutrality, but “the establishment of a religion of secularism.” The Court considered and rejected that idea: “We cannot accept that the concept of neutrality, which does not permit a State to require a religious exercise even with the consent of the majority of those affected, collides with the majority’s right to free exercise of religion.”
As it is with almost all cases involving the religion clauses, not all of the justices agreed in the case of Abington v. Schempp. Yet the principle of neutrality was firmly upheld and has never been questioned. Just last year the Court ruled in the case of Zelman v. Simmons-Harris, a case about a school voucher program in which public funds were spent on parochial schools, primarily Catholic schools. The program was challenged on the grounds that it violated the establishment clause. The Court upheld the program because it found the program “is entirely neutral in respect to religion.”
In Newdow the Court is sure to consider neutrality. The problem with the pledge, according to the appeals court, is that it is not neutral, that it promotes a particular religious belief: that there is one God and one God only. Can promoting such a controversial belief be considered neutral?
Reviving Dead Presidents
In cases involving the establishment clause (such as Newdow), the Court often wonders what the Founders—particularly those who wrote the Bill of Rights—would say. What did they intend? The Court often quotes what those individuals wrote or said. Very often a justice who would like the Court to rule one way or the other selects particular quotes to back his or her argument that so-and-so (usually Thomas Jefferson or James Madison) would rule this way or that in a particular case.
Time and again Supreme Court justices have written essays on the meaning and the history of the establishment clause. Quoting the Founders, the justices have held that their intent varied all the way from erecting a “wall of separation between church and state” to establishing a “Christian nation.”
In Newdow, look for quotes from Jefferson and Madison to support speculations as to what the Founders thought and how they would rule in this case.
Testing for Violations
Something else the Court is likely to consider is a test to determine whether a law violates the establishment clause. Tests have their advantages. If they’re objective, there’s little risk of the judges’ personal opinions getting into the mix. Another big advantage is that legislators and lower courts can use the tests to settle matters, so that they never reach the High Court. Tests promote stability: What’s constitutional one year doesn’t become unconstitutional another year. If the test is objective, it doesn’t matter if it’s a conservative Court or a moderate Court or a liberal Court: They’ll all reach the same conclusion. That’s how it should be, and so tests are good.
Is there a test that can be applied in Newdow? What about the Lemon test? This test is named after the case of Lemon v. Kurtzman, decided in 1971. The Court was asked to decide whether it was constitutional to use public funds to support parochial schools, and the Court ruled it was not, at least not the way that Pennsylvania and Rhode Island were doing it. How did the Court come to such a conclusion? It applied the Lemon test.
The Lemon test didn’t just spring from this one case. It was developed over many years, and it measures a law or government practice according to these three questions:
1. Does it lack a secular purpose?
2. Does it have the principal effect of advancing or inhibiting religion?
3. Does it foster excessive government entanglement with religion?
The first question is called the “purpose prong,” and it asks whether government’s purpose is to endorse or disapprove of religion. The second question is called the “effect prong,” and it asks whether regardless of government’s purpose, the law in question actually endorses or disapproves of religion. The third question is called the “entanglement prong,” and it asks whether government is getting caught up in religious affairs. If the answer to any of the three questions is yes, then we have a violation of the establishment clause.
Seems simple enough, right? Turns out it’s not so simple. The justices don’t always agree on whether a law has a secular purpose or some other “hidden” purpose. They don’t always agree on whether a law tends to advance or inhibit religion, or whether it leads to entanglement. Neither do they agree that the Lemon test is the best test to use. In fact, there’s been a great deal of dispute about the test, despite its lengthy development and long use. For instance, in one case (Allegheny v. ACLU) three of the current justices joined together to say that the effect prong reflected “an unjustified hostility toward religion.”
Another problem is that the Lemon test yields some very inconsistent results, such as:
• A state may lend textbooks to parochial schools, but not tape recorders or maps.
• A state may pay the cost of busing students to parochial schools, but not for taking them on field trips.
• A state may reimburse a parochial school for administering tests prepared by the state, but not for tests prepared by the school’s teachers.
• In some instances Nativity scenes or the Ten Commandments may be displayed in public places; in other instances they may not.
This inconsistency leaves legislatures and lower courts wondering what is constitutional and what is not. Is there another test that might be used, one that yields more consistent results? Will Newdow v. U.S. Congress give the Court an opportunity to devise such a test, or will it reaffirm the longstanding Lemon test?
Schools Are Special
The Court takes special care when it comes to public schools. For most children (those whose families can’t afford private school or don’t have the wherewithal for home schooling), attendance in public school is mandatory. Schoolchildren are a captive audience. They are young and impressionable. For these reasons “there are heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools.”
In 1940 the Supreme Court ruled in the case of Minersville School District v. Gobitis. The case was about a requirement imposed by the Minersville School District: Teachers and pupils were required to recite the Pledge of Allegiance each day. It was about two children attending school in the district: Lillian and William Gobitas.* The two refused to recite the pledge for religious reasons, and so they were expelled from school. Raised according to the beliefs of Jehovah’s Witnesses, they understood the pledge to be forbidden by Holy Scripture. The Court ruled that the children could be required to recite the pledge, even if it violated their religious beliefs. In his lone dissent Justice Marlan Stone noted that the state was competing with the children’s parents, using public schools to “indoctrinate the minds of the young.”
Three years later the Court heard the case of West Virginia Board of Education v. Barnette. Like Minersville, this one was about children in public school who refused to recite the mandatory pledge for religious reasons (the plaintiffs were Jehovah’s Witnesses). It was about a law that said if students didn’t recite the pledge, then their parents could be sent to jail. The Court found the law unconstitutional, not because it gave children such power over their parents, but because forcing children to profess something that violated their religious beliefs “invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.”
The Court overruled the decision it had made in Minersville and left us with this notable sentiment: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”
Twenty years later (in Abington v. Schempp) the Court said the key to its decision in Barnette was that it “involved the compelled attendance of young children at elementary and secondary schools.” In reaching its decision in Abington, the Court was concerned with “young impressionable children whose school attendance is statutorily compelled.”
According to the ruling in Barnette, students in public school cannot be required to recite the pledge. Does that mean that Newdow lacks merit? Not at all. Consider Lee v. Weisman, decided in 1992. In this case the Court decided that it was a violation of the establishment clause for a school principal (the state) to select a cleric (a rabbi), give him guidelines (from the National Conference of Christians and Jews) on how to compose nonsectarian public prayers for “civic ceremonies,” and have him recite those prayers at the school’s commencement ceremony. The Court ruled that to do so was to exceed “the fundamental limitations imposed by the establishment clause, which guarantees at a minimum that a government may not coerce anyone to support or participate in religion or its exercise.” In this case, exceeding those limits amounted to “religious conformance compelled by the state.”
The Court might also consider the rights of parents of public school children to “direct the religious upbringing of their children” (Doe v. Madison, 1999). Although it was not considered in the appeals court’s decision in Newdow, that court has twice declared that parents have such a right. The Supreme Court could look into the question of whether the state violates the rights of parents when it subjects their children (day after day, year after year) to a pledge that advocates a controversial religious belief.
If They’ve Been Doing It, It Must Be OK
The justices are likely to mention our “longstanding traditions” and our “national heritage.” They always do when it comes to deciding whether something we’ve lived with for a while can be ruled unconstitutional.
The Pledge of Allegiance has been around for more than 100 years. The phrase “under God” was added to it almost 50 years ago. If it has been with us for nearly a half century, does it become constitutional for that reason alone? If that were the case, racial segregation would be constitutional just because of its long history, and there would be no constitutional right to abortion.
Consider how important the Court considered tradition when it ruled in the Minersville case more than 60 years ago: “The ultimate foundation of a free society is the binding tie of cohesive sentiment. Such a sentiment is fostered by all those agencies of the mind and spirit which may serve to gather up the traditions of a people, transmit them from generation to generation, and thereby create that continuity of a treasured common life which constitutes a civilization.” Not just a free society such as ours—but any civilization—depends upon a cohesive sentiment, and that sentiment depends on the transmission of tradition from generation to generation. That’s heavy. Whether it’s true or not should be irrelevant in deciding cases.
Does the Constitution say that tradition is a consideration when deciding what’s allowed and what’s prohibited? Are the justices of the Supreme Court free to use such notions as “civilization depends upon tradition” in reaching their decisions? In fact, they are free to do just that. Whether they should be is another question. What is certain is this: The Court has a history of ruling that longstanding traditions are constitutional simply because they are longstanding traditions. (Fortunately, the Court didn’t use this sort of reasoning in Brown v. Board of Education.)
Consider the case of Marsh v. Chambers, decided in 1983, long after the Lemon test had become part of the Court’s establishment clause jurisprudence. At issue in Marsh was whether it was a violation of the establishment clause for a state legislature to open its sessions with a prayer delivered by a Presbyterian minister who was paid by the state for delivering those prayers. In this case the Court didn’t use the Lemon test. Why? Because it would have resulted in the Court’s finding unconstitutional a longstanding tradition: legislative prayer. The Court noted, “The opening of sessions of legislative and other deliberative public bodies with prayer is deeply embedded in the history and tradition of this country.”
In its ruling the Court quoted from an earlier case: “It is obviously correct that no one acquires a vested or protected right in violation of the Constitution by long use, even when that span of time covers our entire national existence and indeed predates it. Yet an unbroken practice . . . is not something to be lightly cast aside.” In short, what the Constitution prohibits, the Court may allow if it’s been going on long enough. In his dissent Justice William Brennan made this observation: “If the Court were to judge legislative prayer through the unsentimental eye of our settled doctrine [by applying the Lemon test], it would have to strike it down as a clear violation of the establishment clause.”
In Newdow the Court could say that the reference to a solitary deity in the pledge doesn’t render the pledge unconstitutional simply because it’s been that way for almost 50 years. Perhaps the Court will even tell us how long a practice must be unbroken before it can elude the law.
Also, look for the Court to refer to “ceremonial deism.” This is the notion that references to the belief that there is only one God have no religious significance, that such references have lost any religious significance through rote repetition. The phrase was introduced in the case of Lynch v. Donnelley, decided in 1984, a case about whether a city violated the establishment clause when it erected a Nativity scene at public expense. Justice Brennan introduced the term in his dissenting opinion: “While I remain uncertain about these questions, I would suggest that such practices as the designation of ‘In God We Trust’ as our national motto, or the references to God contained in the Pledge of Allegiance to the Flag can best be understood . . . as a form of ‘ceremonial deism,’ protected from establishment clause scrutiny chiefly because they have lost through rote repetition any significant religious content.”
In several subsequent cases justices have said that the phrase “under God” in the pledge has no religious significance.
The Matter of Precedents
One more thing that will figure in how the Court decides the Newdow case is a very old tradition affectionately known as stare decisis. More commonly it is known as respecting precedent: the doctrine of following previous judicial rulings unless there’s good reason for doing otherwise.
Following precedent is important. Without it, what the Constitution allows and what it prohibits can change as often as the makeup of the Court changes. Imagine the situation in which abortion or racial segregation is constitutional one decade but unconstitutional the next. Lower courts are bound by Supreme Court decisions, but if those decisions are inconsisent, whoever follows them must be inconsistent—not a good situation. When the Court ignores precedent, it gives future courts justification for overturning its decisions. In effect, ignoring precedent sets a precedent for ignoring precedent.
In a following article we will look at how some of the current justices are likely to rule in Newdow, based on their previous rulings. We will also look at how some of them are eager to ignore longstanding precedents so they may rule in favor of longstanding traditions, be they constitutional or otherwise.
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M. Thorne is a freelance researcher and religious liberty researcher living in Daly City, California.
* Gobitas is the correct spelling of the family’s name; a printing error led to discrepancy in the case’s name.
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