The Supreme Court Decision on the Pledge of Allegiance Case:
Why It Raises Federalism Issues

By MARCI HAMILTON


hamilton02@aol.com
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Thursday, Jun. 17, 2004

Recently, the Supreme Court handed down its opinion in Elk Grove Unified School District v. Newdow - better known as the "Pledge of Allegiance" case.

The plaintiff, Michael Newdow, who is an atheist, sued because he objected to his daughter's being required to recite a Pledge that included the phrase "under God," believing it to be an Establishment Clause violation. The Court, however, did not reach the Establishment Clause question, for it held that Newdow lacked standing to assert his daughter's rights.

("Standing" is the right to sue. Courts invoke doctrines of standing to make sure that the plaintiff is the proper person to assert the right at issue. In particular, the plaintiff must assert his own right, or the right of someone with whom he has the proper relationship.)

The upshot of the holding is that for now, the "under God" Pledge stands, unless and until some future plaintiff who does have standing challenges it, and wins his or her case. In this sense, the case may seem like the proverbial shoe that hasn't yet dropped. And I have little doubt that others with unassailable standing - for instance, atheist families -- will file similar claims in a number of circuits. For the time being, though, this opinion is important for other reasons.

The Court has avoided the easy Establishment Clause question (current doctrine yields only one result--it is unconstitutional, as Justice Thomas convincingly argues), perhaps because the political waters were so turbid. But it has stepped into an arena where it does not belong and where it has opened a Pandora's box.

It might have been better for the Court to have "dig'ed" the case (that is, dismissed as improvidently granted), if the Court could not reach any consensus on a substantive result under the Establishment Clause.

The Majority Opinion Wrongly Intrudes Into State Family Law Issues

The majority's opinion in Newdow was written by Justice Stevens, and joined by Justices Souter, Kennedy, Ginsburg, and Breyer. Its holding that Newdow lacked standing was based on the Supreme Court's interpretation of the relevant state's - California's -- family law. Specifically, given the California law custody situation with respect to Newdow's daughter, the Court held that Newdow did not have standing to assert his daughter's right (if there was one) to challenge the "under God" pledge.

If this kind of holding - about who has custody - sounds to you like it should be coming from a family court, not the U.S. Supreme Court, you're absolutely right.

Because the majority's opinion intruded into a subject that is intrinsically the province of the states - and state courts -- it is very troubling from a federalism perspective. It is well established that state courts have the last word on the interpretation of state law issues and doctrines. But here, the U.S. Supreme Court took it upon itself to be the final arbiter of the meaning of state law.

The federal courts, and in fact the federal government, simply do not deal with custody issues except in the rarest circumstances. The majority's decision was nothing short of hubris when it decided to reach out to determine what Newdow's rights are with respect to the religious education of his daughter. The folly of this decision could be felt in custody disputes around the nation.

The Majority Wrongly Failed to Defer to the Relevant Federal Appeals Court

Even worse, the Court chose this option in a situation where the Circuit situated in that state - California's U.S. Court of Appeals for the Ninth Circuit -- had already ruled that the state law permitted a father in Newdow's circumstances to assert standing.

In his concurring opinion, Chief Justice Rehnquist rightly takes the majority to task for reversing the Ninth Circuit's reading of state law. In general, federal courts defer to the highest court of the state's interpretation of state law, and the Supreme Court defers to the Circuit's reading of the state law in the state where the Circuit sits.

The Supreme Court is simply too far removed from the state to take on the responsibility of divining the state's law. In contrast, the relevant federal appeals court will have the experience of dealing frequently with state law issues of the state in which it sits.

(State law issues do come up frequently in the lower federal courts. Indeed, so-called "diversity" jurisdiction allows a purely state law case to be adjudicated in federal court if the monetary stakes are high enough, and the parties are from different states. Also, a federal case can be tried in federal court even if the plaintiff also alleges state law causes of action. For all these reasons, federal courts do end up seeing a lot of state law issues - and typically, they apply the law of the state in which they sit to decide these issues. So the Ninth Circuit is constantly seeing California law issues come before it. When the Supreme Court takes a case, it usually takes only those cases involving splits in authority between states or the federal courts on federal issues, so the likelihood that the Court will decide a state law issue is small. Indeed, it is not unusual for the Court to remand a case for a clearer determination by the court below regarding the meaning of the state law. For the Supreme Court, California is just one of fifty states whose state law issues rarely arise.)

Chief Justice Rehnquist's Concurring Opinion: Simply Indefensible

In short, then, the majority opinion is troubling, probably wrong as a matter of law, and will doubtless fulfill the law of unintended consequences. But Chief Justice Rehnquist's concurrence -- joined in part by Justice O'Connor and by Justice Thomas - is troubling, too.

There, Rehnquist rightly advocated deference to the Ninth Circuit's determination of state law and therefore standing, but went on to opine that the pledge was constitutional because the Pledge "sums up the attitude of the Nation's leaders." The Chief's reasoning is indefensible. According to Rehnquist, the phrase is fine as long as it means "that God has guided the destiny of the United States . . . or, that the United States exists under God's authority" - for after all, in his view, who could argue with those facts?

The answer is that these are not facts, but rather expressions of a religious worldview, and if that is what "under God" means it is--without question-- unconstitutional. In this religiously diverse country, many would take issue with his statements. They disagree with it because it endorses a particular religious worldview - which is based on belief, not fact. And this kind of endorsement of religion by the government is exactly what the Establishment Clause targets.

Justice O'Connor's Concurrence: Reasoned, But Still In Error

In her separate concurrence, Justice O'Connor wrote to say that the Establishment Clause requires the exercise of judgment rather than any single rule and that "under God" does not violate a multi-factored test; in essence, she would have upheld "under God" on very narrow grounds. She says it is just an occasion of "ceremonial deism," which is part and parcel of this country's history.

For Justice O'Connor "some references to religion in public life and government are the inevitable consequence of our Nation's origins." She stated that it was only appropriate to consider any government-sponsored religious statement from the viewpoint of the "reasonable observer," which is to say that Mr. Newdow's atheist perspective could not control the outcome.

Next, Justice O'Connor considered four factors: First, there is the "history and ubiquity" of the phrase "under God." She finds that 50 years is a fairly long time in a country only a bit over 200 years old.

Second, there is whether the phrase "under God" is either worship or prayer. She finds it is neither.

Third, there is whether the phrase refers to any specific religion. She says it did not, because it refers to a "generic 'God'."

Fourth, and finally, there is the factor of whether the Pledge has minimal religious content. Justice O'Connor says this is true of the "under God" Pledge.

These factors are guaranteed to only work for the Pledge, but there is good reason to question each of O'Connor's individual conclusions. No one is a stronger supporter of her Establishment Clause jurisprudence than I am, but this is an unfortunate departure.

Granted, this analysis is the best one can do if one wants to reach the intuitive result that "under God" does not establish religion. But it simply does not work within the framework for the Establishment Clause that she has elsewhere adeptly constructed.

What is particularly troubling is her reference to Newdow's principled objection to "under God" as "distaste for the reference." Strikingly, Justice Thomas has interpreted O'Connor's own jurisprudence, more consistently, to invalidate "under God" in the Pledge--as much as he dislikes the jurisprudence and the result.

Justice Thomas's Argument on the Merits: Lee Must Be Followed or Overruled

Finally, in his separate concurrence, Justice Thomas argued that while standing was proper, the Establishment Clause should not be applied to the states - only to the federal government.

For integrity, Justice Thomas gets the award hands down. His concurrence is right on target when he writes that if Lee v. Weisman was rightly decided, then the "under God" phrase in the Pledge is not fine. In Lee, the Court held that a high school graduation could not include a prayer sponsored by the school. The Court reasoned that the students were susceptible to coercion when they could not attend their graduation without being subjected to a prayer by the school; the case was, in fact, the culmination of Justice O'Connor's "endorsement of religion" test.

Thomas does not believe Lee was rightly decided. But he argues persuasively that as long as it remains good precedent, it is controlling in this case.

That is, the Court must either decide, consistent with Lee, that an "under God" pledge is unacceptable, or overrule Lee. I agree that the Court's precedents doom "under God," as I wrote in a previous column, though I would disagree that they are wrongly decided.

Justice Thomas's Originalist Argument: Unpersuasive Because Inconsistent with the Historical Evidence

In the end, however, Thomas has a simple answer in this case: The Constitution doesn't reach a state's "under God" Pledge at all, because the Establishment Clause applies only to the federal government. So there was no reason for the Court to consider the Establishment Clause. Unfortunately, this simple answer is a wrong answer.

To understand Thomas's argument, some background is necessary. The Fourteenth Amendment, which applies to the states, has been read by courts to "incorporate" certain Bill of Rights guarantees that otherwise would apply only to the federal government.

In Thomas's view, the First Amendment's Establishment Clause should not be incorporated. He contends that the Clause was included in the Bill of Rights only because the States feared that the federal government would establish a religion - and that this type of federal overreaching, therefore, is all that the Clause prevents.

The history at the time of the framing is otherwise, however. The first draft of the First Amendment by James Madison applied to both state and federal government. Only politics - not principle -- forced it to be limited to the states. And indeed, Madison himself firmly believed that State-established religion was an evil. Indeed, he was a member of a minority religion in the state of Virginia, where there was a longstanding established church against which he fought vigorously.

The American people also had learned the lessons of British history -- of the Tower of London's use as a means of religious persecution; the power struggle between the Roman Catholic Church and the Protestant Churches; and the Inquisitions. And the lesson was not that federal government religion to be prohibited; it was that any government religion was to be prohibited.

American history did not start in 1776 or 1787, but rather the colonists brought with them their knowledge of religion and the state in their native Europe. By limiting the meaning of the Establishment Clause to a political expedient at the time of the framing, Justice Thomas has filtered out all of the relevant background history that makes it clear that the Establishment Clause instituted an important principle that is rightly incorporated into the Fourteenth Amendment.

This quirky Supreme Court opinion offers quirky theories on standing and on the Pledge. It is, to be sure, not the last word on whether "under God" in the Pledge is an unconstitutional endorsement of religion. The Pledge as now written forces school children into an untenable position: they must choose between pledging allegiance to their country (in a time of terror) and being true to their own religious traditions (or perhaps their belief in the separation of church and state). That is a choice that cannot stand in the face of principled application of the Court's own precedents.


Marci Hamilton is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University. An archive of her columns on constitutional issues can be found on this site. Her email is hamilton02@aol.com.

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