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Carol Platt Liebau - Columnist

Carol Platt Liebau is a senior member of the editorial board. She is an attorney, political analyst and commentator based in San Marino, CA, and has appeared on the Fox News Channel, MSNBC, CNN, Orange County News Channel, Cox Cable and a variety of radio programs throughout the United States. A graduate of Princeton University and Harvard Law School, Carol Platt Liebau also served as the first female managing editor of the Harvard Law Review. [go to Liebau index]


Destroying the Pledge in Order to Save It
The Irony of the “Ceremonial Deism” Rationale
[Carol Platt Liebau] 3/29/04   

With the undeserved hoopla surrounding the testimony of Richard Clarke on Capitol Hill last week, it was all too easy for much of the media to ignore another compelling news story: The oral argument before the Supreme Court in the case of Elk Grove Unified School District v. Newdow.

By now, much of America knows the facts: Michael Newdow believes that his daughter was being injured by the fact that her school engages in the recitation of the Pledge of Allegiance, which includes the words “under God” – even though she herself wasn’t required to participate, and although neither she nor her mother objected to the practice. And so he brought suit in federal court, arguing that his child was being impermissibly compelled to “watch and listen as her state-run school leads her classmates in a ritual proclaiming there is a God.” And this, according to Newdow, is a clear violation of the First Amendment’s prohibition on a government establishment of religion.

This isn’t Newdow’s first “issue” with matters implicating religion in public life. An outspoken atheist, he has sued President Bush for permitting Franklin Graham to offer a prayer at his inaugural ceremony in 2001, and likewise has challenged the constitutionality of chaplains employed by Congress. Certainly, he is something of an eccentric; Newdow has styled himself in some of his court filings as "the Rev. Dr. Michael Newdow," heading a church named "The First Amendment Church of True Science."

But it is, perhaps, a sign of our times – and of the state of First Amendment jurisprudence – that Elk Grove Unified School District v. Newdow could be taken seriously enough to reach the Supreme Court. Although the case was dismissed at the district court level, that decision was reversed by a panel of the Ninth Circuit Court of Appeals, applying many of the most well-known judicial precedents in Establishment Clause jurisprudence. The majority concluded, “To recite the Pledge . . . is to swear allegiance to the values for which the flag stands: unity, indivisibility, liberty, justice and – since 1954 – monotheism.” Accordingly, the panel ordered “Under God” to be removed from the Pledge. And so it was those in favor of the Pledge as it currently stands who appealed to the Supreme Court.

Their task is hardly an easy one, given the state of the Court’s establishment clause jurisprudence. For example, in Lee v. Wiseman (1992), the Court established a “coercion” test, holding that a prayer given at a graduation ceremony imposed impermissible pressure on students to participate in -- or at least show respect -- during the prayer. By that standard, surely being required to hear “one nation under God” every day would surely have the same coercive effect.

But there’s little reason to doubt that the Pledge, as it’s currently recited, is safe. Many have observed that some of the justices currently sitting on the Supreme Court seem unusually attuned to the weight of public opinion on their most controversial cases – whether they concern gay rights or the Pledge of Allegiance. If that’s true, it seems likely that they will be reluctant to strike “under God” from the Pledge (thereby angering 90% of Americans), even though many conservative scholars concede that the Court’s own First Amendment decisions would make that result a logical – though unfortunate – one. But the justices would be equally reluctant to admit that the “Establishment Clause” precedents that compel such a ridiculous result require wholesale revisiting.

And so it seems the justices may take another way out. One argument used by those who have opposed Newdow has been that the phrase “Under God,” like “In God We Trust,” is nothing more than “ceremonial deism” – a mere ritual incantation of God’s name for ceremonial purposes, so divested of any real religious meaning as to be inoffensive even an atheist. Some justices apparently found the “ceremonial deism” approach compelling. In oral argument last week, Justice Souter stated, "As a religious affirmation, it (the pledge) is so tepid, so diluted, so far from a compulsory prayer that in fact it should be, in effect, beneath the constitutional radar." Similarly, Justice Breyer noted that "God is so generic in this context as to be a neutral" statement of belief.

But upholding the Pledge on those grounds would be nothing more than a Pyrrhic victory for its proponents. If the Court does decide to rely on the “ceremonial deism” rationale, it will engage in an ironic inversion of reality – for if the words “under God” have no real religious meaning anyway, what exactly is the issue that has brought this case all the way to the highest court in the land? And what would it say about the Declaration of Independence’s assertion that we are “endowed by [our] Creator with certain unalienable Rights” – that such rights have, in effect, just come of their own accord out of the secular ether?

In the end, upholding the Pledge as it is on “ceremonial deism” grounds should be as offensive to people of faith as striking it down would be. That’s because such a holding would allow the words “under God” – and any other civic invocations of the Almighty – to be voiced only because, in truth, they are generally understood to mean nothing at all. CRO

CRO columnist Carol Platt Liebau is a political analyst and commentator based in San Marino, CA.

copyright 2004


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