A Small Victory for the Theocrats

The Pledge stands.

While the majority opinion sidestepped the issue, Rehnquist, O’Connor, and Thomas wrote a concurring opinion that addressed the underlying issue.

The opinion can be found here. It’s a crock.

The amendment’s sponsor, Representative Rabaut, said its purpose was to contrast this country’s belief in God with the Soviet Union’s embrace of atheism. 100 Cong. Rec. 1700 (1954). We do not know what other Members of Congress thought about the purpose of the amendment.

Wha? Now we have to have a full poll of every single voting Member of Congress before we can have a sense of the framers’ intent? This is crap; the record is replete with statements like Rep. Rabaut’s from numerous of those involved, including President Eisenhower.

The phrase “under God” in the Pledge seems, as a historical matter, to sum up the attitude of the Nation’s leaders, and to manifest itself in many of our public observances.

Man, what is it with Conservatives and wiping out whole swathes of the Constitution to achieve limited goals? I thought that was the point of the Establishment clause — that the faith which happened to be held by the Nation’s leaders would not be imposed on the rest of us.

The rest of the opinion continues in this vein; the thrust of it appears to be that state sponsorship of Christianity is outright legal.

There is no doubt that respondent is sincere in his atheism and rejection of a belief in God. But the mere fact that he disagrees with this part of the Pledge does not give him a veto power over the decision of the public schools that willing participants should pledge allegiance to the flag in the manner prescribed by Congress. There may be others who disagree, not with the phrase “under God,” but with the phrase “with liberty and justice for all.”

Yes, but the First Amendment does not say “Congress shall pass no law respecting an establishment of patriotic opinion.”

The recital, in a patriotic ceremony pledging allegiance to the flag and to the Nation, of the descriptive phrase “under God” cannot possibly lead to the establishment of a religion, or anything like it.

Since you just held earlier up that we are allowed to establish Christianity, why are you making this statement? Bizarre.

This case was a slam dunk; it should have been easily decided by existing caselaw. Most of the Court chose to duck it, but Justices Rehnquist, O’Connor, and Thomas simply held that the Establishment Clause of the Constitution of the United States is no longer extant.

Update: Holy crap, I somehow missed Justice Thomas’s concurring opinion:

I accept that the Free Exercise Clause, which clearly protects an individual right, applies against the States through the Fourteenth Amendment. See Zelman, 536 U. S., at 679, and n. 4 (Thomas, J., concurring). But the Establishment Clause is another matter.

Egad.

Super-bonus double update: Dalia Lithwick informs us that it’s actually a really important technicality. Interesting.

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