- Note: one day after issuing the ruling, Judge Goodwin (who wrote the above decision) prevented it from taking effect until the 9th U.S. Circuit Court of Appeals can consider it. The case may be remanded back to the same three judge panel for a rehearing, or the entire Court may want to hear it.
This was the first time in a long while that the rights of those who do not accept the majority’s religious beliefs have been vindicated. The burning question is, however: will this decision stand or will it be overturned? Judge Goodwin, the author of the decision, was very careful. He cites Supreme Court decisions in the area of religious liberty constantly — thus if the Supreme Court wants to overrule, it will either have to spend a lot of time demonstrating the Goodwin interpreted badly, or a lot of time overruling previous Supreme Court decisions.
Goodwin also spent time quoting Justice O’Connor. This is important because she is widely regarded as a “swing” vote in Establishment Clause cases. She tends to be very conservative, but she has also written things which very much support religious liberty for minorities. Supreme Court justices like to be quoted and cited — moreover, they don’t like to vote against decisions which make extensive use of their past writings.
This decision also takes pains to argue that the phrase “under God” fails to pass every Establishment Clause which has been used by the Supreme Court in recent years. Obviously, the more reasons there are to reject that phrase, the better — that is a general principle, but in this case it has added meaning.
In the case of Marsh v. Chambers, the Supreme Court ruled that the practice of beginning the legislative session with a prayer given by the publicly funded chaplain was constitutional. This is related because that is often defended as a facet of “ceremonial deism” — an idea used by the dissent in the Newdow case.
What makes that case interesting is that although the decision in Marsh acknowledged that the lower court found that all three prongs of the Lemon Test were violated, the majority opinion didn’t even mention the Lemon Test. It was ignored totally — probably because it wasn’t possible to claim that the Lemon Test was passed. Because the Newdow decision spends so much time explaining how and why the Pledge fails various tests, that little trick won’t be so easy to accomplish again.
Reactions
Politically, the reactions were very predictable. A GOP memo to all Republican members of Congress and those running for spots in Congress implored Republicans to contact local school boards and ask them to “nullify this decision” by allowing the Pledge of Allegiance to be recited “as is” in classrooms the next morning. A Senate resolution “expressing support for the Pledge of Allegiance” and asking Senate counsel to “seek to intervene in the case” passed 99-0.
One common problem with many of the reactions is that they so often portray the decision as banning the use of “under God” when the Pledge of Allegiance is recited. In fact, nothing could be further from the truth. Anyone, including any school student, who wants to include “under God” when they recited the Pledge of Allegiance is allowed to do so and there is no reason to think that that will change.
What this decision held was that it was unconstitutional for the government to officially insert that phrase into the Pledge of Allegiance and for government officials (in schools) to lead students in reciting the Pledge with that phrase included. In other words, individuals continue to be free to do as they will, but the government is prohibited from telling them what they should do - exactly as was the case when the government banned state-sponsored and state-organized prayers in public schools.
The predictable personal attacks also arrived. Senator Robert Byrd, D-West Virginia, the only remaining member of Congress who voted for the addition of “under God” on June 7, 1954, warned the judges who declared the Pledge of Allegiance unconstitutional to never come before him because they would be “blackballed.” Tom Daschle, D-South Carolina, said, “This decision is nuts.” Sen. Trent Lott, R-Mississippi, said “This is obviously an unbelievable decision, as far as I am concerned, and an incorrect ruling and a stupid ruling.” At no point have any of them explained in any detail where the majority decision errs. If they happen to read this, I urge them to write to me and explain their position.
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