|Back to Sept. Ed Reporter|
|NUMBER 224||THE NEWSPAPER OF EDUCATION RIGHTS||SEPTEMBER 2004|
|Pledge Issue Won't Go Away|
In the Newdow case, the majority held that a California atheist lacked standing to ban the Pledge from his daughter's school because he lacked sufficient legal custody of the child. Three justices wrote separately that the Pledge does not violate the Constitution's Establishment Clause. The decision overturned a highly controversial ruling two years ago by the 9th Circuit Court of Appeals that the teacher-led Pledge was unconstitutional.
After both houses of Congress voted overwhelmingly to condemn the 9th Circuit decision, it seems safe to say that the liberal justices on the Supreme Court were happy to have a reason to avoid deciding the issue. It is inevitable, however, that other atheist parents will bring similar challenges in court. "This case will be back," Newdow promised, saying he had heard from people around the country asking him for help in challenging the Pledge. He added that he hopes challenges will be filed in every federal judicial circuit except the 7th Circuit, which upheld school-led recitations of the Pledge in 1992. (Education Week, 6-23-04)
The Supreme Court held in 1943 that schools cannot compel students to recite the Pledge (which did not then contain the words "under God"). The Newdow case challenged the constitutionality of voluntary participation by students when the Pledge is led by a teacher.
Michael Newdow's discomfort with his daughter's participation in the Pledge prompted an eloquent rebuttal from Harvard professor Samuel P. Huntington. "Unbelievers do not have to recite the pledge, or engage in any religiously tainted practice of which they disapprove. They also, however, do not have the right to impose their atheism on all those Americans whose beliefs now and historically have defined America as a religious nation." (Wall Street Journal, 6-16-04)
"The proportion of Christians in America rivals or exceeds the proportion of Jews in Israel, of Muslims in Egypt, of Hindus in India, and of Orthodox believers in Russia," notes Huntington, who thinks U.S. atheists should get used to living in a Christian country.
Daniel Henninger subsequently argued in the Journal that "God, whether He exists or not, is good for summoning national pride, communal bonds and the martial spirit." When schoolchildren recite that their nation exists under God, "they are admitting an organizing force in life other than their cute, little selves." (Wall Street Journal, 6-18-04)
When the link between national purpose and God is broken, "the U.S. will start to become, well, France smart, sophisticated, agnostic and save for nuclear bombs, inexorably weak," Henninger concludes.
In 1940, when public schools included daily prayer, teachers reportedly rated the top disciplinary problems as follows:
In 1990, teachers listed the top disciplinary problems as:
(See www.teenhelp.us/ot/index.php?web_code_ wc0197, which does not describe the survey methodology or ultimate source.)
Indeed, while the 9th Circuit decision against the Pledge in Newdow became a lightning rod for criticism, some observers fault Supreme Court precedents on religion in public schools rather than the 9th Circuit court. Supreme Court Justice Clarence Thomas opined in Newdow that the teacher-led Pledge cannot be squared with previous decisions of the high court such as Lee v. Weisman (which barred invocations and benedictions at public school graduations), and the only solution is to overrule those precedents.
In the Pledge case, the Supreme Court dodged a political hot potato, leaving to lower courts the unenviable task of wrestling with its own unpopular precedents. As other legal challenges to the Pledge work through the system, it will be interesting to see how judges, faced with the groundswell of support for the Pledge, follow or distinguish those precedents.