June 16, 2004
While many people are celebrating the Supreme Court's decision on Monday to dismiss a lower-court ruling that deemed as unconstitutional the phrase "under God" in the Pledge of Allegiance, some of the leading warriors in the fight are not that happy about the route the justices took.
The two-word phrase is secure in the Pledge -- for now -- after the high court ruled 8-0 that Michael Newdow, the plaintiff in the case, had no standing in the case he launched on behalf of his daughter because he does not have custody of the young child. The California atheist had challenged the inclusion of "under God," which was added to the oath in 1954 by Congress. The ninth justice, Antonin Scalia, had recused himself for public comments he had made earlier regarding the case.
While pro-family and conservative groups generally are pleased with the high court's decision, some are expressing their disappointment that the justices chose to make their decision based on a technicality and not on the substance of the case: the constitutionality of the phrase "under God," its recitation by public schoolchildren, and whether -- as Newdow charged -- it violates the Establishment Clause of the First Amendment.
The chief counsel for Concerned Women for America (CWA) describes the decision as a victory because it allows "under God" to remain in the Pledge, but she says the issue is likely to resurface quickly.
"The Court's ruling on the standing issue is a very significant one because parental rights are very important," says Jan LaRue. Still, she says, organizations such as CWA and others involved in the case would have preferred a ruling on the merits upholding "under God" in the Pledge for schoolchildren.
One of those groups that filed a "friend of the court" brief in Elk Grove Unified School District v. Newdow was the Thomas More Law Center in Ann Arbor, Michigan. TMLC says the Supreme Court "sidestepped the question," effectively leaving the door open for further challenges.
"Because the Court avoided deciding the Pledge case on its merits, the ACLU and other anti-religious organizations will undoubtedly find a new plaintiff to again challenge the Pledge," says TMLC chief counsel Richard Thompson.
Both CWA and TMLC gratefully acknowledge the fact that three Supreme Court justices -- Chief Justice William Rehnquist and Justices Sandra Day O'Connor and Clarence Thomas -- went out of their way to write separately explaining that it is constitutional for public school students to recite the Pledge as it has been since 1954. But well-known evangelist Dr. D. James Kennedy, who says the high court "took the easy route" in the case, finds little solace in that.
Having stated he takes "little comfort" in the Court's technical ruling, Kennedy proceeds to say: "I take even less comfort from the fact that only three of the eight justices ... signed a separate opinion stating that recitation of the Pledge in public schools is constitutional. Rehnquist, O'Connor, Thomas, and, presumably, Scalia, do not a majority make."
Kennedy expects Newdow or someone else to once again raise the issue and pursue it to the Supreme Court. "The Pledge remains in peril," the Florida evangelist says.
Conservative pundit Gary Bauer agrees, saying the Supreme Court decided to "punt," implying the justices really did not want to move as quickly as Newdow preferred in removing religion from the public square. Like attorney Richard Thompson and Dr. D. James Kennedy, Bauer says the battle is not over.
"Mr. Newdow's sin was that he was moving too fast," Bauer says. "The activist judges prefer to strip us of our heritage slowly so as not to rouse us from our sleep. A decision to alter the Pledge of Allegiance would have been a gigantic wake-up call. Stay tuned –- this one will be back."
Likewise, Rob Schenck of the National Clergy Council is critical of the decision. "We're very happy that the Pledge will retain these very important words: 'one nation, under God,'" he says, "but you could say that this was justices' 'cowards' way out' by skirting the issue."
Schenck believes there were too many differing views among the justices so they simply found an easy way to throw the case out of court. That, he says, is disappointing because the Court chose not to examine "the real heart of the issue, which is critical to the life of our nation."
Concerned Women for America (http://www.cwfa.org)
Thomas More Law Center (http://www.thomasmore.org)
National Clergy Council (http://www.faithandaction.org/DDDclergycouncil.htm)
© 2004 Agape Press.