"Why should I be made to feel like an outsider?" asked Mike Newdow, the California atheist who got two judges to declare the Pledge of Allegiance unconstitutional, as he explained his litigious urges to The New York Times. After he's finished stripping "under God" out of the Pledge, he hopes to rip "In God We Trust" off of our money. And he is itching to do something about the annoying proclivities of newly elected presidents to pray at their inaugurations.
Wacky? Sure. But not particularly surprising. In his intolerant urge to stop more than two centuries of government sponsorship of innocuous bows toward religion, Newdow typifies the hypersensitive, illiberal attitude of more than a few crusaders for strict separation of church and state-an attitude that has infected some Supreme Court opinions. And in his desire to make not being offended a constitutional right, Newdow has something in common with campus multiculturalists bent on censoring as "harassment" the uttering of political opinions that offend members of politically preferred groups.
Newdow's pseudo-constitutional objection to being "made to feel like an outsider" draws undeserved plausibility from Justice Sandra Day O'Connor's dubious contention, in opinions since 1984, that the Constitution forbids any governmental endorsement of religion that "sends a message to non-adherents that they are outsiders, not full members of the political community." Someone should tell O'Connor that lots of folks are made to feel like outsiders every day, in many ways; the burden of hearing people go on about God at public events does not rank high on the scale of oppressiveness or deserve a constitutional remedy. I say this as one who doubts the wisdom (but not the constitutionality) of the 1954 law that put "under God" in the Pledge.
The 2-1 decision in Newdow v. U.S. Congress to strike down the Pledge has been widely ridiculed as an example of the liberal adventurism long associated with the U.S. Court of Appeals for the 9th Circuit. But in fairness to Judge Alfred T. Goodwin, the Nixon-appointed author of the decision, his logic was rooted both in O'Connor's formula for detecting establishment-clause violations and in the ill-advised language of Supreme Court precedents banning nondenominational prayers at high school graduations and football games.
Goodwin acknowledged that Newdow's 8-year-old daughter had not been required to join her classmates in reciting anything. But he held, "The mere fact that a pupil is required to listen every day to the statement `one nation under God' has a coercive effect" and thus unconstitutionally compels students to participate in a religious exercise.
In reaching this odd conclusion, Goodwin relied especially on the Supreme Court's ruling two years ago that "the delivery of a pre-game prayer has the improper effect of coercing those present to participate in an act of religious worship"-even though nobody was required either to attend the football games or to join in the prayers.
The facts of that case, Santa Fe Independent School District v. Doe, did raise real constitutional problems because the pre-game prayers were sponsored by school officials who were also said to have "chastised children who held minority religious beliefs." But Justice John Paul Stevens went well beyond the facts in an opinion for the Court that, dissenters complained, "bristles with hostility to all things religious in public life." He suggested that pre-game prayers would be unconstitutionally coercive even if initiated by a vote of the students, without official encouragement; dissenters would be "at the mercy of the majority," feeling a "sense of isolation and affront." A majority vote, Stevens explained, "guarantees, by definition, that minority candidates will never prevail and that their views will be effectively silenced."
"Silenced": a favorite word of campus speech-code enforcers who seek to justify their own censorial itch by claiming that they are impermissibly "silenced" if others are allowed to say things that they don't want to hear. Did some bright young Stevens law clerk seize a chance to slip such Orwellian reasoning into the law of the land?
Be that as it may, what we have here is a failure to appreciate vast differences of degree. It is one thing to see religious coercion at work when children are pressured by the threat of ostracism to join in the unmistakably religious exercise of reciting classroom prayers. It is quite another thing to see prayers as coercive when attendance is optional and any pressure on those present to participate is minimal. And when students do feel pressure to join in classroom recitations of the 31-word Pledge, they can easily skip "under God" if it offends them, without adverse consequences.
With some stretching, Stevens's logic in the football-prayer case could even be read as foreshadowing a ban on all patriotic rituals at schools-not only those that mention God, as do the national anthem and most other patriotic songs, but also those that are devoid of religious content. Consider the recitation of (say) passages from the safely secular Bill of Rights. This would raise no establishment-clause issue. But it arguably would violate the free-speech clause, if a single student objected, under an updated reinterpretation of the Supreme Court's justly celebrated 1943 decision in West Virginia Board of Education v. Barnette.
The Court held then that the free-speech clause barred "compelling" Jehovah's Witnesses to recite the Pledge of Allegiance-which did not mention God at the time-because such compulsion would violate their beliefs. The Court said allowing those students to be silent would not prevent the other students from reciting the Pledge. But that part of the decision is arguably outdated. Now that the current justices have said school-sponsored religious speech would amount to "coercing those present to participate," would not the same be true of school-sponsored patriotic speech?
There is, of course, zero chance that the justices, who follow the election returns, will exile patriotic rituals from schools. And it seems a safe bet that the commonsense view expressed by Judge Ferdinand F. Fernandez in dissenting from the three-judge panel's ruling in the Pledge case will eventually prevail on appeal. Vague governmental references to God, he wrote, have "no tendency to establish a religion in this country or to suppress anyone's exercise, or non-exercise, of religion, except in the fevered eye of persons who most fervently would like to drive all tincture of religion out of the public life of our polity." Fernandez also put his finger on the circularity of the majority's don't-make-anyone-feel-bad jurisprudence: "I recognize that some people may not feel good about hearing [phrases such as `under God'] recited in their presence, but, then, others might not feel good if they are omitted." Hurt feelings do not a constitutional violation make.
Common sense was also the touchstone of Zelman v. Simmons-Harris, the Supreme Court's 5-4 decision on June 27 approving tuition vouchers for religious and other private schools in Cleveland. Chief Justice William H. Rehnquist persuasively held that giving vouchers to poor families desperate to escape failing public schools does not amount to an establishment of religion-even if the vast majority of the voucher money ends up at religious schools-as long as parents have a reasonable choice among magnet schools, charter schools, special grants for individual tutoring, and secular as well as religious private schools.
This is not to dismiss the fears of the liberal dissenters. The use of tax dollars to pay for religious indoctrination raises concerns close to the core of the establishment clause. And voucher programs-unlike the Pledge of Allegiance-could someday create problems more serious than hurt feelings. They could make religious schools dependent on public aid and thus subject them to intrusive regulation. And competition among religious sects for government money could foment conflict and damage the nation's social fabric.
But other programs have long channeled state and federal aid to religious schools without causing serious problems. The harms feared by the dissenters are speculative. Grievous damage is being done right now to the millions of inner-city children trapped in dismal public schools that prepare them only for lives
of ignorance and poverty. Vouchers, although no panacea, are perhaps the most promising experiment yet devised for providing such children with decent educations and hope for better lives. It would be perverse to construe the establishment clause so rigidly as to kill in its cradle an education reform that could do the neediest among us a lot of good.
We have a long way to go to live up to promise of "liberty and justice for all" in the Pledge of Allegiance. The voucher decision was a step in the right direction.
Stuart Taylor Jr. National Journal