Weekly Standard publisher Terry Eastland provides some interesting background to the Ninth Circuit Court’s recent Pledge decision:
Ten years ago in a case called Lee v. Weisman, the Supreme Court decided that a state may not sponsor the sort of prayers long customary in America at middle or high school graduation ceremonies — invocations and benedictions — not even when the saying of those prayers is rotated among representatives of a community’s various faiths.
The five Justices certain of the unconstitutionality of such prayer made no comment, however, on the fact that right before the invocation was uttered (by a local rabbi) the students at Nathan Bishop Middle School in Providence, R.I., stood and said the Pledge of Allegiance. Now, the Pledge, you may know, happens to contain those two little words, ‘under God.’
In dissent, Justice Antonin Scalia noted that the students had indeed said the Pledge, and he proceeded to examine that fact in light of the reasoning advanced in the majority opinion. Under the First Amendment’s Establishment Clause, wrote Justice Anthony Kennedy for the Court, ‘government may not coerce anyone to support or participate in religion or its exercise, or otherwise to act in a way which establishes a state religion or religious faith, or tends to do so.’ The graduation prayer, Justice Kennedy concluded, flunked the coercion test. But so, contended Justice Scalia, would the Pledge:
‘If students were psychologically coerced to remain standing during the invocation, they must also have been psychologically coerced, moments before, to stand for (and thereby, in the court’s view, take part in or appear to take part in) the Pledge.’
Justice Scalia then asked: ‘Must the Pledge therefore be barred from the public schools’?
Who knew?
As Eastland argues, the time has come for the Court to “develop some badly needed First Amendment doctrine […] that distinguishes between real establishments of religion and phantom establishments […].”
Indeed. And between real coercion and mere discomfort, too.
—–