by Yesterday the Ninth Circuit, in a 2-1 decision, backed away from its controversial position of a few years ago and ruled that the words “under God” in the Pledge of Allegiance do not violate the Establishment Clause. The majority opinion by Judge Carlos Bea is lengthy and careful– and sensible, I think, given the law that it had to work with. It doesn’t pretend that “under God” isn’t religious or has been drained of its religious content; rather, the opinion emphasizes that the dominant purpose of the Pledge is patriotic, and that is what should matter. The dissenting opinion by (surprise!) Judge Stephen Reinhardt is even longer, also very thorough, utterly self-assured, and characteristically indignant: the majority is just caving in to political pressure, Reinhardt says, and upholding an expression that is clearly unconstitutional.
Pundits, politicians, and scholars have written volumes about this question by now, and I’ve contributed to those volumes, so I won’t try to rehearse any arguments here. But I wonder whether this decision is a manifestation of the end of the “no endorsement” doctrine– a doctrine that originated in the mid-80s and that, while attractive on one level, is just so manifestly incongruent with so much in the American political tradition (including much that is revered, such as Jefferson’s Virginia Bill for Religious Freedom, the Declaration of Independence, Lincoln’s magnificent Second Inaugural Address, and expressions of probably every President from Washington to Obama) that it just couldn’t be consistently adhered to. Pretending to adhere to it often has led merely to rationalizations that are palpably implausible (such as Justice O’Connor’s explanation at an earlier point in this case of how “under God” really doesn’t send a message endorsing religion). Maybe it’s time for courts to acknowledge that the “no endorsement” experiment, though well intentioned, just hasn’t worked out, and it should be abandoned. We can hope– I can, anyway– that yesterday’s decision is a step in that direction.
Steve, I share your hope. For what it’s worth, I think that our friend Tom Berg’s account / defense of the Pledge — i.e., that it involves the affirmation of an important principle of political philosophy, namely, that the role and range of the state is limited — is a powerful one.