http://www.tnr.com/doc.mhtml?i=express&s=mulhauser061504DAILY EXPRESS
Thank God
by Dana Mulhauser
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Only at TNR Online | Post date 06.15.04 E-mail this article
Yesterday the Supreme Court unanimously avoided a decision on whether the phrase "under God" could remain in the Pledge of Allegiance. Rather than rule on the substance of the issue, eight justices--the ninth, Antonin Scalia, had recused himself from the case--found that plaintiff Michael Newdow could not bring suit on behalf of his school-age daughter because he was not her custodial parent. Though the majority's ruling has the practical effect of overturning the Ninth Circuit Court's two-year-old decision removing the words "under God" from the Pledge, it did so without settling the larger legal question of whether the presence of those words in the Pledge is actually constitutional--which is probably the best result liberals could have hoped for. That's because a loss in this case would have been a legal setback for liberals, while a victory--albeit extraordinarily unlikely--would have been a political disaster.
The truth is that liberals never wanted this case to happen in the first place. "Standard separationist people think that there are many more important issues to fight over, and while as a matter of principle they agree with Newdow, they don't want to engage in a big battle," says Mark Tushnet, a First Amendment expert at Georgetown law school. That's why the ACLU and the other usual suspects didn't really champion this case from the start. Instead, Michael Newdow, an eccentric lawyer, pushed the case himself, financing it through three lower-court rulings and all the way to the Supreme Court.
The benefits to liberals of the Court's decision yesterday are obvious. A Newdow victory could have brought heavy backlash against Democrats. In an election year, nothing makes better Republican campaign fodder than accusing the Supreme Court of disdaining God. What's more, such a ruling could have done more harm than good to the drive for strict separation of church and state. Many activists feared a response similar to the mid-1990s backlash from a Hawaii Supreme Court ruling authorizing gay marriage, which led the federal government and more than half of state legislatures to pass laws defining marriage as a heterosexual union. At the same time, liberals did not want to lose the case either. After all, a defeat on constitutional grounds would have meant enshrining the constitutionality of "under God" into law, effectively foreclosing the possibility for a more progressive ruling on the Pledge anytime in the next generation.
In any event, if the Court had decided the case on the merits, Newdow almost certainly would have lost. The Court has regularly upheld examples of "ceremonial deism," including prayers in legislative bodies, "In God We Trust" on the money, and pictures of Santa Claus in town halls. Only three justices even blanch at such practices: Ruth Bader Ginsburg, who used to be general counsel for the ACLU; David Souter, who has a soft spot for keeping state-sponsored religion away from kids; and John Paul Stevens, the closest thing this Court has to a liberal lion. But there was no fourth vote, let alone a fifth, in support of pulling God out of the Pledge. All the remaining justices have shown at least some tolerance for state-sponsored religion. And despite the hullabaloo surrounding Scalia's recusal from the case, he did not make the liberal position much easier. In an eight-person court, five votes are still required for a majority opinion. (A vote of 4-4 would have preserved the Ninth Circuit's ruling against the phrase "under God"; but it would not have created a legal precedent that was binding anywhere else in the country.)
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