Summer 2004, Vol. 7, No. 2

Table of Contents
Summer 2004

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in this issue

From the Editor:
Shocked, Shocked

Kerry Eucharistes

Tying the Knot in the Bay State

Black Pastors Bridle at Gay Marriage

A Thorn in the Mainline's Side

Still Under God

Kabbalah for Dummies

Breaking Boston's Heart



Still Under God
by David W. Machacek

When the Supreme Court marshal opened proceedings on June 14 with the customary “God save the United States and this honorable Court,” the supplication may have been more earnest than usual.

Two years earlier, the Ninth Circuit Court of Appeals had ruled that the Elk Grove School District policy of starting school days with teachers leading their classes in the Pledge of Allegiance was unconstitutional because, since 1954, the Pledge has declared the United States to be a nation “under God.” The public responded with shock and outrage.

One unnamed AM radio host, the San Jose Mercury News Katherine Corcoran reported June 27, 2002, “said lawmakers and even President Bush were pointing the finger at the 9th Circuit, adding, ‘I won’t say which finger.’”

Among scores of colorful reactions no one topped Kevin O’Brien, deputy editorial director for the Cleveland Plain Dealer, who on June 30 wrote that Michael Newdow, the plaintiff in the case, “suspects this country is going to heaven in a handbasket” and has “no intention of standing idly by and watching it happen.” The “predictably loony” Ninth Circuit judges might find Newdow’s complaint reasonable, but they “get their leashes yanked by the Supreme Court so often, they might as well wear reversible robes. They’re always up to something that winds up providing comic relief for real judges, once they get over the aggravation of seeing the law so routinely mangled.”

William Donohue of the Catholic League for Religious and Civil Rights issued a press release urging civil disobedience in response to the decision: “We need teachers all over the nation to lead their students in the Pledge (respecting the right of dissenters not to participate). But before doing so, the teachers need to contact both the police and the media: it is vitally important that everyone watch on television the teachers being taken away in handcuffs for saying the Pledge of Allegiance.”

Public officials struggled to find words strong enough to convey the strength of their disapproval. White House spokesman Ari Fleischer called the ruling “ridiculous”; to Senate Majority Leader Tom Daschle it was “just nuts”; “senseless,” pronounced Sen. Joseph Lieberman.

Within days, both the U.S. Senate and House of Representatives passed resolutions denouncing the decision, the Senate unanimously. Hearst Newspapers Washington columnist Marianne Means could not resist the irony of an atheist performing the “political miracle” of getting “the pokey, partisan Congress to act swiftly and in unison.”

But amid the shock and dismay, there were those who made so bold as to suggest that Newdow was neither ridiculous nor nuts.

The problem with the decision, San Francisco Chronicle columnist Jon Carroll wrote June 27, was that “as a matter of common sense, the court’s ruling is both sensible and obvious.” On the Fourth of July, the Boston Globe’s Ellen Goodman weighed in, writing that “the court’s ‘untraditional’ opinion was as careful as it was controversial.”

Reporters had little trouble finding people with good reason to applaud the decision. On June 27, after talking with Rev. Masao Kodani of the Senshin Buddhist Temple in Los Angeles, Bob Egelko of the San Francisco Chronicle reported that Buddhists “do not believe in God and many view the concept of a supreme creator as a cause of suffering. Kodani said he instructs children in his temple’s dharma classes to recite the Pledge in school but to remain silent during the mention of God.”

Teresa Watanabe of the Los Angeles Times placed the decision in the context of the country’s increased religious diversity. “Particularly since changes to federal immigration law in 1965, the nation’s religious landscape has been reshaped by new waves of Muslims, Buddhists, Hindus and other minority groups,” Watanabe wrote July 3. “Some conservative Christian leaders have denounced the growing diversity from the pulpit and called for a new reassertion of the nation's ‘Judeo-Christian heritage’ in public life.”
The question was whether “under God” was expansive enough, or indeterminate enough, to embrace the new variety of American religious perspectives. “The word ‘God’ is vague and vast, an umbrella,” Kyogen Carlson, abbot of the Dharma Rain Zen Center in Portland, told the Portland Oregonian’s Nancy Haught on June 28. “From a Buddhist point of view, someone can ask me whether I believe in God, and I can answer yes or no truthfully. I do not believe in God as other, but God as cosmic principle I have no problem with.”

Washington Post columnist Richard Cohen was likewise willing to give “under God” a pass, writing on July 9 that the words constituted “a trivial and mostly innocuous governmental affirmation of religious belief.” That the Pledge was innocent enough to pass constitutional muster some reporters showed by interviewing schoolchildren.

On November 5, 2003, for example, M.L. Lyke of the Seattle Post-Intelligencer came up with the following rendition based on his discussion with first-graders at a local school: I pledge de legions to the flag / of the United States of America / and to the public of which it stands / one nation, under guard, in delivery / with liverty and justice and all. Amen.

But as Newdow awaited its day in the Supreme Court, the realization began to take hold that this was actually a very hard case—particularly in light of the relevant legislative history. Writing in USA Today on May 5, 2003, Tony Mauro joined many other journalists in pointing out that “under God” had been inserted into Pledge in 1954 in order to distinguish a faithful America from “godless communism.”

“Neither Congress nor President Dwight Eisenhower made any bones about the religious intent of the added words,” Mauro wrote. “‘From this day forward,’ Eisenhower said, ‘the millions of our schoolchildren will daily proclaim…the dedication of our nation and our people to the almighty.’” As for the notion that the words have since become so rote as to be stripped of any religious significance: “That is a hollow ‘burn down the village to save it’ kind of argument that does not have much merit.”

“Ridicule has been heaped upon the California parent, Michael A. Newdow, who challenged the pledge and won in federal court,” the St. Louis Post Dispatch declared on October 16, 2003. “But he has a respectable argument.”

“The Bush White House has jumped to the defense of the Pledge,” wrote Jeff Bruce in the October 19 Dayton Daily News. “This, of course, is hardly an act of political daring…. Defending the Constitution, on the other hand, can sometimes involve risk.”

What was the Supreme Court to do? In the run up to the March 24, oral argument, a number of stories focused on the conundrums.

“If ‘under God’ is really as religiously unimportant as Pledge proponents claim, then the government is asking students ‘to take the name of Lord in vain,’ which violates the Ten Commandments,” Douglas Laycock, a church-state theorist at University of Texas Law School, told the Associated Press on March 12.

“Before the justices can decide whether those two words render the Pledge unconstitutional,” Linda Greenhouse, the New York Times’ astute Court-watcher, wrote on March 21, 2004 “they have to answer a factual question that is inextricably entwined with the legal one: what exactly does it mean to pledge allegiance to ‘one nation under God?”

In the meantime, conservative activists and politicians were gearing up for an “under God” crusade.

An April 8 article by Keith Peters on the Focus on the Family website,, reported that Congress was exploring the possibility of separating the unruly justices of Ninth Circuit by splitting the court into two or three circuits. The article directed readers to the organization’s “Stop Judicial Tyranny” website where readers could learn about bills under consideration in the Judiciary Committees of both the House and Senate designed to “strip” courts of the power to decide cases involving state-sponsored religious expression, including two “Pledge Protection Acts.”

On June 8, the Senate Judiciary Committee held a hearing on the “Constitution Restoration Act,” written in part by Roy Moore, the former chief justice of the Alabama Supreme Court ousted for refusing to comply with a federal court order to remove a three-ton monument to the Ten Commandments from his courthouse. The hearing, entitled “Beyond the Pledge of Allegiance: Hostility to Religious Expression in the Public Square,” featured testimony complaining that “religious expression is being threatened across the country by activist groups and judges,” according to Amy Fagan, reporting on the hearing in the June 9, 2004 Washington Times.

Attempts by the legislature to wrest control of the power to interpret the Constitution from the judiciary are hardly new. Charges of “judicial activism,” calls for impeachment of justices, and proposals for laws and constitutional amendments designed to compel judicial compliance have long been commonplace responses to unpopular decisions. Nonetheless, since Marbury v. Madison in 1803, the Supreme Court has maintained itself as the final authority on constitutional interpretation.

However, the Court has done so not through an exercise of raw judicial power, but by carefully protecting its credibility as an impartial forum for arbitrating between what the public wants and what the Constitution requires. In part, it has accomplished this by avoiding issuing rulings that directly contradict overwhelming public opinion.

On March 24, the AP released the results of a national poll in which 87 percent of respondents said “under God” should remain in the Pledge. In the face of such overwhelming public sentiment, an opinion favoring Newdow’s position would have been very difficult to sell—and in any event would have given religious conservatives powerful new ammunition to use in their campaign to undermine the credibility of the Court’s Establishment Clause decisions.

At the same time, an opinion upholding the Pledge wording would be exceedingly difficult to rectify with the Court’s prior interpretation of the Establishment Clause, which has been held to prohibit state endorsement of religious belief and policies that, however subtly, coerce individuals to profess belief or participate in religious practices.


Arch conservative Phyllis Schlafly may have put it best, in an opinion published April 5, 2004 on “The Supreme Court is faced with the choice between abandoning its…precedents or affirming them, which would plunge the justices into the angry sea of public scorn and congressional retaliation.” It was, indeed, a classic Catch-22.

Given those circumstances, the Court did the only thing it could do: It punted, citing “prudential” reasons in its decision reversing the Ninth Circuit Court ruling. In the majority opinion, Justice Stevens said a lower court ruling that gave Sandra Banning full legal custody of Newdow’s daughter called Newdow’s standing in the case into question. Given the controversial nature of the case and Newdow’s questionable standing to bring the case, Justice Stevens wrote, “the prudent course is for the federal court to stay its hand.” That left the constitutional issue unresolved.

Nation-wide, some journalists were perplexed that the justices gave no answer to the question that had so exercised the nation. “So America is still a nation under God after all,” opined Lakeland, Florida, Ledger religion editor Cary McMullen on June 19. “Funny how nobody is particularly happy about it.” The Northwest Indiana Times complained on June 17, “the justices did not do their jobs.”

McMullen was finally reconciled by recognizing the parity of the Court’s decision in Newdow with its refusal to hear Roy Moore’s appeal of a federal court order to remove his monument to the Ten Commandments from the Alabama Supreme Court building. “Newdow is the second zealot the court has rebuffed in recent months,” McMullen wrote. “Considering these cases together, the court . . . has steered a course between the extremists on both sides.”

Further to the right, on July 5 Erik Potter, news editor of the Illinois Leader, which describes itself as “Illinois’ Conservative News Source,” expressed his sense that “an opportunity was lost to settle a disruptive issue that has troubled this country for 50 years.” Recalling the context of McCarthyism and the Red Scare, “these words were added in a time of virtual paranoia….They were not intended to invoke a unifying, holistic, ‘indivisible with liberty and justice for all’ sentiment,” and, in Potter’s opinion, they “deserve an honest questioning, if for no other reason than they did not receive one in 1954.”

On the left, Linda Greenhouse seemed, in the June 15 New York Times, to delight in what she described as “portraits in irony.” “Justice Stevens, one of the court’s most liberal members, offered a paean to judicial restraint…quoting from an opinion written in 1983 by the conservative icon Robert H. Bork, then an appeals court judge.” “Justice Stevens is a consummate craftsman,” Greenhouse snickered, “and the sly reference was clearly intentional.”

Chief Justice Rehnquist, according to Greenhouse, “criticized the majority’s invocation of the doctrine as ‘novel,’ ‘ad hoc,’ and so narrowly drawn as ‘to be, like the proverbial excursion ticket—good for this day only.’”

“That remark,” Greenhouse reminded readers, “mirrored almost exactly the criticism of the majority opinion he joined four years ago in Bush v. Gore, the case that decided the 2000 election through an unusual application of equal protection principles and with instructions that the decision not be cited as precedent for any other case.”

For Findlaw columnist (and Yeshiva University law professor) Marci Hamilton, whose June 18 column gave the most detailed exposition of the decision, the answer to the Establishment Clause question was “easy.” “Current doctrine yields only one result—[the pledge] is unconstitutional, as Justice Thomas convincingly argues.” Thomas, whose church-state jurisprudence is rarely praised by any but the most religiously conservative, received admiring words from Hamilton, a self-proclaimed advocate of church-state separation: “For integrity, Justice Thomas gets the award hands down.”

The rub is that Justice Thomas—who has consistently voted with Scalia in Establishment Clause cases and who, along with Scalia, has been held up as a model Supreme Court justice by President Bush—went on to argue that the Court’s Establishment Clause jurisprudence has been flawed since 1952.

For Hamilton, that is precisely why O’Connor’s approach, while an “unfortunate departure” from the “framework for the Establishment Clause that she has elsewhere adeptly constructed”—jurisprudence that the Ninth Circuit Court had followed carefully in its decision—is more desirable and probably “the best one can do if one wants to reach the intuitive result that ‘under God’ does not establish religion.”

On June 14, U.S. Newswire legal reporter Heather Morton reported that Doug Laycock, who filed an amicus brief on behalf of 32 Christian and Jewish clergy who took exception to the government’s argument that the reference to God was devoid of religious significance, told a roundtable discussion organized by the Pew Forum on Religion & Public Life that the Court’s decision was “an entirely sensible resolution to a difficult question. For most Justices in the majority, this result avoided a very difficult problem: it was politically impossible to strike down the Pledge, and legally impossible to uphold it.”

The plurality view of the editorial pages of the national papers, likewise, was that the Court did the right thing. “The decision turns one of the court’s hot-button cases into a real dud—and for this Americans ought to be grateful,” wrote the Washington Post on June 15. “A decision based on standing may have the feel of a cop-out,” they continued, but “insisting that the courts refrain from considering such matters unless someone with a clear stake in them objects is one of the central checks against overly broad judicial power.”

By punting, the Court removed an inflammatory issue from the election-year agenda, inoculated itself against charges of activism, and preserved—at least for now—the credibility of a half-century of Establishment Clause jurisprudence.

As the Pledge story developed, what journalists at first perceived as an interesting but probably trivial question of Constitutional principle raised profound questions about the power of the executive and legislative branches to encroach on civil rights, legislative challenges to the Court’s authority to interpret the Constitution, and the proper scope and exercise of judicial power.

While the Newdow case raised these issues in the public mind, however, these questions were put more directly to the test by the Bush administration’s “bold claim of unreviewable executive power” in the cases involving the rights of so-called enemy combatants in the war on terror, as Greenhouse noted in her annual review of the Supreme Court’s term on July 4, 2004. At the end of its 2003-4 term, an embattled Court chose a skirmish it could win and sent a powerful message to the President and Congress that the Court “has the last word on what the Constitution means.”


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