Schools Are Special
M. Thorne November/December 2003
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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."
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: