Monday, June 14, 2004

Final Thoughts If the “under God” clause really were just a religiously neutral bit of ceremonial deism, why is there so much opposition to restoring the pledge to its pre-fifties version? Then there would be no opposition at all to having kids recite it. Ceremonial deism is not what inspires the entire Congress to recite the Pledge on the stairs in front of Congress.

The fact is that as it stands the Pledge is not just unconstitutional. It is blatantly, flagrantly and flamboyantly unconstitutional. The problem the courts face is how to pretend that what is obviously an endorsement of religion is actually something else. They can make up nonsense phrases like “ceremonial desim” and compile arbitrary lists of criteria for determining which religious invocations are religious and which are just ceremonial, but this is precisely the sort of judicial activism conservatives hate when the result goes against them.

This is not the church/state issue I would have chosen to fight. Unlike O'Connor, I do think there are de minimis violations of the Establishment Clause; things that are violations but are so minor in the scheme of things that it's probably better just to let them slide. I find Bush's faith-based initiatives, giveaways of tax money to parochial schools in the form of voucher programs, or the attempts to thrust creationism into science classes to be far more important issues.

But the fact remains that this was the issue Newdow chose to fight and it was the one the supremes agreed to hear. The standing issue was hardly clear-cut (that issue was decided 5-3, recall). The majority found the way they did becuase they wanted to duck the firestorm that would have ensued had they ruled the way their consciences dictated.