Sunday, May 04, 2003

The Pledge heads back to court

Earlier this week Solicitor General Ted Olson filed a petition with the U.S. Supreme Court seeking reversal of the Ninth Circuit’s now-infamous Pledge of Allegiance ruling. The appeal, captioned United States v. Newdow, asks the Court to consider whether the words “under God” in the Pledge violate the First Amendment’s Establishment Clause, and additionally whether Michael Newdow had standing to challenge the Pledge in the first place.

The standing issue is actually more fascinating than the Pledge question. Newdow sued the federal government and his daughter’s public school district, arguing that the “under God” words were facially unconstitutional, and that the school’s policy requiring the Pledge’s recital violated his daughter’s First Amendment rights. The problem, at least according to the Solicitor General, is that Newdow does not have legal custody of his daughter. Newdow never married the child’s mother, and a California custody order granted the mother “sole” custody, although Newdow retains limited parental rights, including the ability to “consult” on “substantial” decisions regarding the daughter’s education.

In the Ninth Circuit, the mother unsuccessfully sought to intervene, arguing neither she nor her daughter contest the Pledge’s constitutionality (indeed, a recent news report indicates the daughter continues to recite the Pledge at school voluntarily.) The Solicitor General considers the mother’s position dispositive towards Newdow’s standing:

Where, as here, the two parents disagree on an educational practice, the decision of the custodial parent controls and Newdow has no right to overturn it. If, as the non-custodial parent, Newdow believes the mother’s educational decisions are causing harm to the child, the proper remedy is for him to resort to family court and seek a modification of the custody agreement. He cannot use federal litigation to circumvent that state-law process or to modify state-law custody judgment.

On the other hand, Newdow is alleging an ongoing violation of his daughter’s constitutional rights. This in and of itself may constitute a substantial enough interest to justify the father’s standing. But it’s far from clear. For one thing, if a noncustodial parent can assert standing on a child’s behalf, then what’s to prevent a more distant relative from doing so in future cases. Standing cannot be diluted to the point where individuals are permitted to use children as plaintiffs of convenience. The Court needs to carefully consider Newdow’s standing here, although the disposition of this question need not prevent adjudication of the underlying Pledge claim. If nothing else, Newdow should possess standing to challenge the constitutionality of the wording of the Pledge itself, if not its recitation in the public schools. At the same time, Newdow’s claim to sue on his daughter’s behalf should probably be overruled.

On the Pledge issue, the Ninth Circuit was basically correct, although the reasoning is incomplete. The addition of “under God” does violate the Establishment Clause. The Solicitor General’s protests to the contrary are wholly unconvincing. The government’s central argument is that the acknowledgment of God is historical, rather than religious:

[I]n concluding that the Pledge results in unconstitutional coercion, the court of appeals failed to come to grips with this Court’s repeated recognition that the Establishment Clause permits such historic, ubiquitous, and ceremonial acknowledgments of our Nation’s religious character and heritage. Such references are not reasonably and objectively understood as coercing individuals into silent assent to any particular religious doctrine. Rather, the Pledge is“ consistent with the proposition that government may not communicate an endorsement of religious belief,” County of Allegheny, 492U. S. at 602- 603, because the ceremonial reference to God acknowledges the undeniable historical facts that the Nation was founded by individuals who believed in God, that the Constitution’s protection of individual rights and autonomy reflects those religious convictions, and that the Nation continues as a matter of demographic and cultural fact to be a predominantly“ religious people whose institutions presuppose a Supreme Being.”

This is, at best, distortion. Whether the nation’s Founders were religious—and that’s a debatable premise with regard to many of them—has no bearing on the constitutionality of placing the words “under God” in a Pledge adopted in 1942. The Solicitor General compounds his error by making hyperbolic claims such as: “Unless the Establishment Clause compels courts to root out every reference to religion in public life...” This is not the point. There are numerous contexts where religion may be referred to in governmental contexts. The Establishment Clause speaks only to actions which advance religion to the exclusion of other beliefs. If the government seeks to acknowledge the role of religion in American history, it may do so through simply teaching religious history. Putting “under God” in the Pledge, however, does nothing more than endorse religious belief in a contemporary setting without providing genuine historical context or understanding.

And this leads to the incomplete nature of the Ninth Circuit’s ruling. While that court limited its review to the “under God” terms—and indeed, that’s all Newdow challenged—requiring school children to recite the Pledge itself violates the First Amendment. This is because the Pledge amounts to compelled speech, not necessarily because it advances religion. The Pledge is a “loyalty oath,” and the government cannot require such oaths of any citizen, including children. The state’s goal in requiring the Pledge as a “daily patriotic exercise” is insufficient. There is no state interest in instilling “patriotism” in students. Patriotism is a reflection of one’s pride in country, and that is a fundamentally individual decision that cannot be produced on command by state officials.

Since the Solicitor General’s challenge is limited to the “under God” question, however, it would be improper for the Supreme Court to consider the Pledge’s constitutionality at this time. It would be sufficient for the Court to affirm the Ninth Circuit on “under God,” while also untangling the complications arising from the standing problem.

Finally, the Solicitor General’s petition makes an unusual request for the Court to “consider summary reversal” of the Ninth Circuit. This means the Court would reverse the lower court’s decision without oral argument or normal briefing procedures. Given the Court’s previous rulings upholding the Pledge, I can understand why the Solicitor General feels summary reversal may be justified here. But I would actually suggest the Court take an even more unconventional approach, and grant the petition, summarily reverse on the standing issue only, and remand to the Ninth Circuit for further proceedings. This would likely result in Newdow’s suit being dismissed, while leaving the Ninth Circuit’s core ruling on the Pledge intact.

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