Commentary: new Pledge decision
on Aug 10, 2005 at 4:20 pm
This is another in a continuing series of reports on the impact Supreme Court decisions have on later rulings by lower courts — here, the impact of several statements by members of the Court over the years in the course of deciding Establishment Clause cases.
Using Supreme Court dicta in the absence of any controlling precedent from the Court, the Fourth Circuit on Wednesday upheld the government’s power to order public schools to conduct a daily recital by students of the Pledge of Allegiance, including its phrase “one Nation, under God.” It rejected a challenge to a daily recitation law in operation in Virginia public schools, which allows an opt-out by students who object themselves or whose parents or guardians object. (Opt-out students, though, must remain in the classroom during the recital.)
In three separate opinions, each covering somewhat different ground, the three judges on the Fourth Circuit panel agreed on one basic conclusion: the Pledge as now written is constitutional because Supreme Court Justices have said so over the years — but never in actually deciding a case on the issue. In the one Supreme Court case in which the Pledge’s constitutionality was directly at issue, the 2004 ruling in Elk Grove United School District v. Newdow, the Court declined to decide the issue, finding that the challenger there, California atheist Michael Newdow, did not have a legal right to bring his case. (Newdow, incidentally, is pursuing a new case through lower courts.)
Inevitably, the validity of the Pledge will return to the Supreme Court, perhaps in the very case just decided by the Fourth Circuit. (The attorney who brought that challenge, David H. Remes of Covington and Burling in Washington, said he and his client have not decided whether to seek further review.)
But the holding in that case (as distinguished from some of its rhetoric) is so determinedly tied to non-binding comments by the Justices that it essentially skirts at least two core questions: just why is the Pledge as written only a patriotic utterance, and can it be said with assurance that school children reciting it under state command would think of it only in that way? The Supreme Court, if it is ever to rule directly on the issue, would seem to be obliged to answer both.
Circuit Judge Karen J. Williams of Orangeburg, S.C., who wrote what appears to be the lead opinion in the Fourth Circuit case (Myers v. Loudon County Public Schools, et al., docket 03-1364), undertook to answer the first question, but not the second. Her opinion ultimately concludes that “the Pledge is by its nature a patriotic exercise, not a religious exercise.” She purports to find support for this conclusion in her reading of official acknowledgements of religion throughout American history — an exercise that neither of her colleagues joins and which one colleague (Circuit Judge Allyson K. Duncan of Raleigh, N.C.) suggests was questionable. But Williams, too, also relied upon the dicta of individual Justices through the years suggesting that the Pledge was constitutional when recited daily in public schools. That part of her opinion, which does draw the support of Duncan, notes — in partially italicized form — that “not one Justice has ever suggested that the Pledge is unconstitutional. In an area of law sometimes marked by befuddlement and lack of agreement, such unanimity is striking.”
No part of the Williams opinion (except the judgment) is supported by the third member, Circuit Judge Diana Gribbon Motz of Baltimore, who most openly concedes that she is guided solely by the Justices’ dicta. Without that “explicit guidance,” Motz writes, “this could be an extremely close case, requiring navigation through the Supreme Court’s complicated Establishment Clause jurisprudence.” Neither she nor Duncan wanted to navigate that meandering course.
When the Supreme Court itself comments in an opinion on issues it is not deciding, or when individual Justices do so in the course of separate opinions, those comments do not bind the Court and they do not bind lower courts. The Justices, indeed, often treat dicta derisively, when they disagree with it.
Two of the judges on the Fourth Circuit panel, though, recite Circuit precedents that suggested that lower courts should treat such statements as “authoritative” or of “considerable persuasive value.” That, of course, was a gesture of considerable respect toward the Supreme Court. But the Circuit Court had been asked directly to decide the issue on its own, in a specific case, and it had considerable freedom to undertake — as only Judge Williams partially did — to provide its own answer. As Williams showed, the search for authority in history was one, independent approach to an answer.
Judge Duncan, in her concurrence, stretched the concept of dicta quite far. Dicta was one of two predicates she said the Circuit Court should rely upon. The other was stated this way: “Authority suggesting that recitation of the Pledge is not a religious activity, but rather a ‘patriotic exercise designed to foster national unity and pride’ in the ideals that the flag symbolizes.”
The “authority” behind that statement was a comment by Justice John Paul Stevens in the Newdow case, saying that the history of the Pledge shows that it “evolved as a common public acknowledgement of the ideals that our flag symbolizes. Its recitation is a patriotic exercise designed to foster national unity and pride in those principles.” It was that opinion by Stevens, of course, that explicitly refused — for the Court — to decide whether the Pledge, including the phrase “one Nation, under God,” was constitutional. Only the dissenters essayed an answer to that question, but they spoke only for three of the Court’s eight members taking part (The ninth, Justice Antonin Scalia, recused himself.)
Judge Motz overstated considerably the stature of the dicta. Her opinion joining in the judgment began: “The Supreme Court has spoken repeatedly on the precise issue we address today. The Court has consistently said that inclusion of the phrase ‘under God’ in the Pledge of Allegiance does not offend the Establishment Clause.” In her next paragraph, she clarifies that broad statement, saying the Court’s (and Justices’) statements were dicta.
It is impossible to get into the real motivations of the Fourth Circuit judges in writing their opinions in this case. But they no doubt were aware of the firestorm of criticism that arose after the Ninth Circuit had ruled the Pledge, as written, invalid when recited by public school students (a decision set aside by the Supreme Court’s Newdow ruling). It would hardly be surprising if there was some hesitancy to kindle those still-hot embers. The federal courts now know, even more than they could see at the time of the reaction to the Ninth Circuit, how much trouble their substantive decisions on deeply controversial social issues can cause in Congress, the White House, and American politics.
Should the Pledge issue return to the Supreme Court, the Justices themselves might well hesitate, too. In fact, the Court may choose to avoid the issue altogether, unless a split should develop in the courts of appeals. Wednesday’s decision by the Fourth Circuit suggests that may be quite unlikely, in the foreseeable future.
