I was planning to go to sleep earlier than normal so I could be sure to be at work in time to see a little event tomorrow morning, but Chuq just posted something that I feel compelled to respond to.
He’s ridiculing the Pledge of Allegiance case that the Supreme Court just decided to hear, casting the issue as one of a minority group, atheists, trying to assert their free speech rights over the rights of the rest of the country.
The problem with that argument is that this isn’t a free speech case. If I choose to say the Pledge with “under God” in it, I’m allowed to do so, and if I choose to say it without those words, I can also do so. In fact, students in a class can choose to say it either with or without the words today…or with any other words, or none at all. None of that is at issue in this case.
Instead, this is a freedom of religion case. The First Amendment mandates the separation of church and state. Newdow, the plaintiff, is arguing that the presence of the words “under God” in a phrase that is repeated in an official ceremony (not much of a ceremony, admittedly, but one nonetheless) is effectively an establishment of religion by the government. He isn’t asking that everyone be banned from saying the Pledge; after all, it’s just a series of (non-obscene) words. Anyone can say them whenever and wherever they want (subject to standard restrictions of freedom of speech…perhaps you couldn’t yell the Pledge in a crowded theater or something like that). He’s arguing that the Pledge shouldn’t be an organized part of his daughter’s education as long as it keeps its current words.
It’s a case that’s rather reminiscent of Abington School District v. Schempp, the landmark 1963 case in which the Supreme Court ruled that mandatory daily Bible readings in public school were an unconstitutional government establishment of religion. My mother was a student at Abington at the time, and I have to say I can’t even imagine what it must have been like for her, as a Jewish girl, to have to read from the King James Bible and recite the Lord’s Prayer every day. Even if she had been allowed to sit in silence or leave the room while the rest of her class did the reading, the ceremony itself said that she and her faith were not really a part of what the school stood for.
Forty years later, it’s easy for us to look back at Abington and claim that the court decision was obvious, that it’s unquestionably wrong for non-Christian students in a public school to have to read from the Christian Bible every day…or to be ridiculed or punished when they choose not to participate. At the time, though, the decision was extremely controversial. Members of Congress immediately started work on a constitutional amendment to override the Court. As the months and years went by and the apocalypse failed to materialize, support for an amendment eroded. I’m glad that my only exposure to the Bible in my public school education was from discussions of history and comparative religion.
It’s easy to dismiss Michael Newdow as an anti-religion nut case, or, as Chuq says, a representative of a group of capital-A “Atheists”. Newdow is not the best plaintiff to bring this case. I’m sure the attorneys who will argue his side would have preferred a nice all-American family that happens not to believe in God, or a Buddhist family, or the concerned parents of a teenage daughter who has taken to paganism and been subjected to teasing and harassment for her beliefs. You play the hand you’re dealt, and since Newdow filed the case himself, he’s all his side’s got.
Will the Court rule in Newdow’s favor? Who knows. I won’t be surprised if they remand the case, saying he doesn’t have standing. Whether you agree with him or not, though, this is an interesting case, and it’s certainly not a slam dunk in either direction. It’s also definitely not an attempt to assert some vague rights, nor is it an attempt to ban potentially offensive speech. It’s simply a question of whether the recitation of “one country, under God” as part of a school ceremony is a government establishment of religion. Of course, if the answer was as simple as the question, we wouldn’t be arguing about it.