‘Under God’: An ‘Injury’ With Almost No Victims

There’s a legal maxim most lawyers learn during their first week in law school: “De minimis non curat lex” (“The law does not concern itself with trifles”). On Monday, the U.S. Supreme Court will open its 2003-04 term, and almost everyone predicts that it will sooner or later agree to hear what is probably the ultimate de minimis case.

Last year, the U.S. 9th Circuit Court of Appeals, in a 2-1 decision, ruled that the Pledge of Allegiance was unconstitutional because it contained the two words “under God.” The court said that the phrase, added by an act of Congress in 1954, amounted to “a religious act” that violated the 1st Amendment’s ban on establishment of religion. Judge Alfred T. Goodwin, author of the majority opinion, held that the words constituted “a government endorsement of religion” and that forcing nonbelieving children to listen to their teachers and classmates utter those words had “a coercive effect” by sending them the message that they were “outsiders.”

The 9th Circuit is famous for its loopy, ultra-liberal rulings that run against the grain of other federal courts and are often overturned by the Supreme Court. But given the long line of previous Supreme Court decisions banning teacher-led prayers in schools and even student-led prayers that receive any sort of official endorsement, the 9th Circuit Court is probably technically right. “It’s going to be very hard to explain why we can lead the schoolchildren of America in a religious creed every morning,” says Douglas Laycock, a professor of constitutional law at the University of Texas.

“This is in one sense the most profound religious and political statement that you can make,” says Rick Duncan, professor of religion and the Constitution at the University of Nebraska’s law school and an activist in the Christian Legal Society. He contends the problem began 40-odd years ago, when the Supreme Court, in an effort to address what might have been a real problem -- prayers dictated by school boards -- began interfering with issues that had been traditionally considered matters of state and local jurisdiction. The 1st Amendment’s establishment clause, after all, says only that Congress is barred from favoring particular religions.

But one still might ask: What is this case -- contesting a single phrase in a patriotic pledge recited and accepted by hundreds of millions of Americans without protest for nearly 50 years -- doing in court?

Nearly all Americans, even the nonchurchgoing, believe in a God of some sort. And even those believers who aren’t monotheists acknowledge a divine principle shared by all their deities. It was thus not surprising that the American public, as well as Congress, reacted with outrage to the 9th Circuit’s efforts to rewrite the pledge, which the court apparently took to heart. The original version of its ruling had outlawed the words “under God” in the pledge under all circumstances, but the judges narrowed its application to California public schools.

The problem is this: The de minimis rule lives on in theory, but in practice the U.S. legal system increasingly ignores it.

Our courts regularly allow people to bring lawsuits claiming trivial, subjective or even hypothetical injuries. Men obtain civil rights damages from bars offering ladies’ night discounts, and airline passengers can join class-action suits over hikes in frequent-flier miles required for upgrades.

Hypothetical injury lies at the heart of the pledge case. The plaintiff, Michael Newdow, originally claimed that his daughter, now age 9, was not forced to recite the pledge but that she was harmed when compelled to “watch and listen” as her teacher and classmates in Elk Grove, Calif., recited it daily, according to Goodwin’s opinion. After the ruling came down, Newdow, who’s an atheist, ominously informed USA Today that his daughter had been “threatened” by anonymous telephone callers, but that she was in “a safe place.” It was later revealed that Newdow’s daughter lived with her mother, Sandra Banning, a devout Christian and Sunday school teacher who said the girl was not only being raised as a Christian but recited the words “under God” voluntarily along with her classmates. The “safe place” turned out to be her mother’s home. Newdow and Banning, who were never married, had been battling for years over custody rights to the child.

Furthermore, besides being a physician and lawyer, Newdow has a third occupation: professional litigant. In 1998, while living in south Florida, he sued the school district in Broward County to remove the words “under God” from the pledge, but the 11th Circuit Court of Appeals threw out the suit without a hearing because his daughter no longer lived in the state. In the same year, Newdow dropped a suit to have the words “In God We Trust” removed from U.S. currency; and in 2000 he unsuccessfully sued to prevent the Rev. Franklin Graham from saying a prayer at President Bush’s inauguration.

When news about his daughter’s Christian beliefs broke last year, Newdow changed his legal argument, contending that the suit actually concerned his right as a parent to direct his child’s upbringing. He didn’t have custody of the girl at the time, which weakened his argument, but last month, after a long trial in a Sacramento family court, he won joint custody. His legal standing to challenge the pledge may now be stronger, but the fact remains that the case is not about a vulnerable child’s forced exposure to religious beliefs but about Newdow’s assertion that “I feel like I’m not a real American because I won’t uphold the pledge,” as he told the Associated Press.

Crusaders are entitled to file lawsuits, but the rule ought to be that in order to win, they should have to beat the de minimis maxim. The challenges of the National Assn. for the Advancement of Colored People to racial discrimination in the 1950s involved people subjected to the genuine indignities of segregation. The Supreme Court’s sodomy-law ruling last term, whether rightly or wrongly reasoned, involved real criminal penalties for sexual acts. Even atheist activist Madalyn Murray O’Hair’s successful assault against school prayer in Baltimore in the early 1960s involved a regimen of Bible-reading that could be construed as sectarian. But claiming to be hurt by a reference to the deity in the Pledge of Allegiance? C’mon.

The Supreme Court is now in a hard place, trapped in the trenches it dug when it began to strike down school prayers in the 1960s. The justices could let the 9th Circuit ruling stand, allowing the Pledge of Allegiance to be outlawed in California schools but not elsewhere. That’s not likely, legal experts say, nor is it likely that a majority of justices, still smarting from last term’s round of controversial decisions, will follow the logic of the school-prayer cases to its inevitable end.

Most likely, say law professors, the high court will either hunt around for some procedural reason to vacate the 9th Circuit’s holding (perhaps Newdow’s standing), or it will cobble together -- out of offhand remarks in previous court decisions upholding use of the word “God” on money or for Congress to have a chaplain -- a jerry-built rationale for upholding the pledge. “I wouldn’t want to be the law clerk assigned to write the first draft of that opinion,” says the University of Nebraska’s Duncan.