A Pledge That Divides

This editorial page rarely sees eye to eye with Justice Clarence Thomas on the Constitution. But in concluding last week that the words “under God” unconstitutionally transform the Pledge of Allegiance into something of a religious incantation, the Supreme Court justice got it right. Half right, anyway. We’ll get to the other half in a bit.

Thomas’ surprising assertion came in his dissent from the court’s non-decision last week on the pledge. Michael Newdow, a Sacramento-area atheist, filed this suit on behalf of his school-age daughter, objecting to the words “under God,” which Congress added in 1954 to the original 1892 pledge in answer to “godless communism.” Newdow insists that students asked to recite the pledge are being asked to affirm a belief in God.

One wonders, of course, why Newdow and others now challenging every last official religious reference, no matter how innocuous, don’t have something better to do. But the lawsuits, far as they are from the most urgent matter on the national agenda, still deserve a direct and thoughtful response.

Such was a lower-court ruling two years ago backing Newdow’s claim. Nervous Congress members rushed to the House and Senate floors to profess their support for keeping “God” in the pledge. The Supreme Court, which quickly took the case, was expected to summarily reverse the lower court, snuffing out Newdow’s claim.

Instead, the 5-3 majority threw out the suit on a technicality involving the mother’s legal custody of Newdow’s daughter. The justices ducked the constitutional question, leaving for another day the matter of whether “under God” should stay.

Their reticence raises a more fundamental and interesting question: To come together as a nation, must Americans chant their allegiance? The United States existed for more than a century before Francis Bellamy, a Baptist minister, wrote the pledge for school celebrations of Columbus Day. His simple oath expresses this nation’s core belief in “liberty and justice for all.” But it is not the indispensable rule book that is the Constitution, nor is it a national symbol like the American flag. Why not just dispense with the obligatory vow before school begins or the Board of Supervisors convenes?

Short of that, the justices’ reluctance to tackle head-on even the narrower question of “under God” speaks to the muddled mess that church-state law has become. Mandatory prayer in school is not constitutional, but taxpayer funding for tuition at parochial schools is. Students can hold voluntary Bible study classes on school grounds, but Washington state can deny public scholarship funds to a divinity student. The tiny cross on L.A. County’s official seal, which supervisors agreed this month to remove, probably wouldn’t survive a court test, and who knows about the Civil War-era motto “In God We Trust,” engraved on currency. Where’s the logic, or even a clear doctrinal line, in this tangle?

Justice Thomas’ answer -- the nutty half of his argument -- is for the court to cease this futile effort to slice ever finer the doctrinal salami. He argues instead for interpreting the Constitution in a way courts have rejected for at least a century, namely that states aren’t bound to enforce civil liberties the Bill of Rights guarantees. Under his view, Congress -- but not the states -- is barred from making laws respecting the establishment of religion. Utah could, for example, adopt Mormonism as its official religion, Alabama might vote to be a Baptist state and California could go New Age.

The intellectually honest approach would be for the court to acknowledge the remaining divine references in public oaths, city and county seals and on federal currency for what they are -- religious invocations that don’t belong in a secular, multicultural democracy. They have instead become one more way to divide Americans, something this nation hardly needs.