Report from Congress - Wicker Wants More Definite Ruling on Pledge of Allegiance

REPORT FROM CONGRESS

By Congressman Roger F. Wicker

WICKER WANTS MORE DEFINITE RULING ON PLEDGE OF ALLEGIANCE

July 5, 2004

Exactly 50 years after Congress added the words "under God" to the pledge of allegiance, the U.S. Supreme Court acted on June 14 to overturn a California appeals court ruling that had declared the phrase to be unconstitutional. The high court was correct in striking down the earlier decision, although I wish it had made a more clear and definitive statement about this issue.

The Supreme Court ruled that the plaintiff did not have a legal right to bring the lawsuit but did not address whether the words represent an unconstitutional establishment of religion by the government. One newspaper described the action by saying the high court "punted" and that the broader question about the separation of church and state would surely arise again. While voting with the majority, Chief Justice William Rehnquist also expressed concerns about the decision. He said the state of the domestic affairs of the parents "has nothing to do with the underlying constitutional claim."

ATHEIST BROUGHT CASE IN CALIFORNIA

Atheist Michael Newdow filed suit in California federal court on behalf of his daughter who participated in the daily pledge in her classroom. The case eventually reached the 9th Circuit Court of Appeals, which ruled in Newdow's favor
in 2002.

The appeals panel said Newdow had standing to challenge a practice that interfered with his right to direct his daughter's religious education. It also said the language of the First Amendment prohibited state-supported schools from giving their approval to a declaration of loyalty to "one nation under God."

PLEDGE IS 'PATRIOTIC'

Attorneys representing the Bush Administration and the California school district told the Supreme Court the pledge is a patriotic exercise, not a state-sponsored religious activity. They also noted the court had previously ruled that anyone who opposed inclusion of the words "under God" has the right to omit them when reciting the pledge.

In reversing the decision, the Supreme Court said that since Newdow does not have full custody of his daughter, he lacks legal standing to bring action. The girl's mother, Sandra Banning, has the final decision-making authority about the girl's education. Ms. Banning said she and her daughter opposed Newdow's efforts and supported the pledge of
allegiance as written.

Only three justices wrote about the broader implications of the case. Justice Rehnquist said the pledge requires students only to "promise fidelity to our flag and our nation, not to any particular God, faith, or church." Justice Sandra Day O'Connor noted that the words "under God" commemorate the role of religion in our history, and Justice Clarence Thomas wrote that the pledge does not have a constitutional defect. Justice Antonin Scalia did not take part in the decision after having publicly criticized the California appeals ruling.

PRESIDENTIAL ELECTION IMPORTANT

The Supreme Court was right to knock down the 9th Circuit Appeals Court's misguided ruling, but it is interesting that five of the nine justices focused on what some observers consider a technicality instead of addressing the separation of church and state question. The matter will likely come before the high court again, perhaps after the next president has appointed one or two new justices to the panel. The importance of those appointments, and the impact they could have on the make-up of the court, should be another consideration for voters in this year's presidential election.