March 24, 2004

Safire's Pledge solution. William Safire discusses the Pledge of Allegiance case, which will be argued in the Supreme Court today, and proposes a solution. Although he thinks "this time-wasting pest Newdow ... is ... right," in that adding the words "under God" back in 1954 was wrong, he thinks taking the words out at this point, "offending the religious majority, would be a ... mistake now." So what's the solution?

First, he rejects the idea of "us[ing] the issue of standing to punt, thereby letting this divisive ruckus fester." That baldly assumes the Court uses the constitutional requirement that a litigant have standing to sue in federal court as a way to get rid of pesky cases. There's reason to suspect the Court doesn't apply the standing doctrine in as neutrally principled a fashion as it purports to do, but standing presents a serious constitutional question about the courts' own power. I haven't studied the briefs, but from what I've read about Newdow's case, I don't think he does have standing. More on that later.

The solution Safire does offer is "for the court to require teachers to inform students they have the added right to remain silent for a couple of seconds while others choose to say 'under God.'" Nice try, but there's a huge problem with that: it directs the teachers to lead the class, in a kind of religious exercise. The teacher would be essentially telling the students to examine their own beliefs with respect to the divine and assess whether they have the set of beliefs that makes it appropriate to say those words and to outwardly manifest those beliefs by either saying or not saying the words. Now, the recitation of the Pledge becomes even more of a display of belief in the classroom, as opposed to the historical or de minimis incantation, and to the recitation has been added an exercise of self-examination about religious beliefs, directed by the class authority figure.

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