What's Not at Stake in the Pledge Debate

This report by Dahlia Lithwickon the oral arguments before the Supreme Court in the Pledge of Allegiance case (a.k.a. Elk Grove United School District v. Newdow) highlights a delicious irony of the “under God” side’s position. The folks who have been beating their breasts about the powerful importance of the phrase “under God” can only win the constitutional debate by admitting the phrase is not really important at all! The key argument in support of their position is that the phrase “under God” is nothing more than ceremonial deism with no real (or at least, no serious) religious connotations. If the phrase carries any more significance than that, the Justices will have little choice but to strike it down as unconstitutional. Having “under God” in the Pledge is either (a) meaningless and constitutional or (b) meaningful and unconstitutional.

Only if the Supreme Court vacates the Circuit Court’s decision on grounds of standing will the “under God” crowd be able to have their cake and eat it, too. No wonder they’ve spent so much time focusing on the standing issue: they don’t want the Court to decide the First Amendment issue at all, because no outcome of that decision would be a favorable one. They just want this case to go away.