FLS Editorial: Scalia’s recusal unfortunate, but honorable

An opinion that echoes my own:

By virtually pre-ruling on a case he should have expected might soon land before him, he was unjudgelike. You would expect this kind of revealment more from a one-gallus JP than from a man addressed as “Mr. Justice.” Still, his spot-on Fredericksburg statement about the Pledge case–that courts have, without historical warrant, too often chased faith from the public square–merely reiterates some of his past written opinions. Under such circumstances, most judges would stay in their robes and hear the case. Mr. Scalia won’t. He deserves credit for choosing the high road of self-disqualification.

Which is where I stop agreeing with the editorial, because like Justice Scalia I do not believe that there is room to eliminate “under God” from the Pledge.

The hard truth is that precedents concerning religion in public schools, set in a half-dozen landmark Supreme Court decisions since 1948, appear to bolster the 9th Circuit’s ruling. A daily, solemn, patriotic vow that recognizes a deity does indeed work to establish religious faith. But by agreeing to hear a California school district’s appeal of the Newdow case, rather than just leaving it be, the court sends the message that its prior rulings may need “refinement.”

A good point to make, and one that is certainly backed by court rulings post-1948. Unfortunately for Newdow, there is no room to argue how the mention of the deity should be removed under the 1st Amendment’s umbrella of freedom of religion.

Furthermore, Newdow has to make the further argument that somehow mentioning God without prejudice to denomination promotes the establishment of religion as defined under the Estabilshment Clause.

There are only two routes. Newdow must argue that atheism must be protected under the Establishment Clause, in which case he sets up atheism as being recognized as a religious belief. In doing so, by forcing government to whitewash any theistic reference from American society, it could in very real ways be construed as establishing atheism as the official religion of the American government – which is a direct violation of the Establishment Clause.

The second route is to simply recognize that there is no room in American jurisprudence for atheism. America was founded on a principle that God guarentees certain inalienable rights, and that foundation is what the Constitution is founded upon.

The only wild card in play is the recent fad of the Supreme Court to introduce foriegn jurisprudence into their decision-making process (as what happened in Lawrence v. Texas concerning anti-sodomy laws). If European jurisprudence is introduced into the decision, this could turn out to be very bad for the Pledge of Allegiance. Added to the mix is the introduction of the “under God” stanza of the pledge during the 1950’s and we could see the “One Nation Under God” motto above the U.S. House of Representatives removed, barring a far-reaching Constitutional Amendment.