Supremes dodge the Big Question on Newdow case
(and Justice Thomas goes Over the Rainbow)

It's old news by now, but since I mentioned the case when it was first argued, I should mention the Court's decision in Elk Grove Unified School District v. Newdow, the case in which an atheist parent sued to prevent his child's school district from requiring her to recite the Pledge of Allegiance on the grounds that the phrase "under God" constituted a governmental establishment of religion. Disappointingly for those who love legal Armageddons, the Court ruled against Newdow on the narrow, technical grounds that under the child custody agreement between him and his ex-wife, she had final legal custody of the daughter on whose behalf he filed the lawsuit, and that he therefore did not have standing to sue.

The interesting part of the opinion, after one wades through pages of minutiae about parental custody, is the concurring opinions. Rehnquist and O'Connor argue predictably that the "under God" phrase does not violate the First Amendment prohibition of establishment of religion because of its traditional and ceremonial nature. To tell the truth, their arguments sound a bit weaselly, but that's usual when judges try to navigate the dangerous waters between the words of the Constitution and the desires of themselves and a significant portion of the population. But then Justice Thomas, as this blogger puts it, goes "over the rainbow" and asserts a novel-to-me claim that the Fourteenth Amendment, although it does extend to the states the First Amendment right to individual religious free expression, somehow fails to correspondingly extend the federal ban on establishment of religion. Thus Thomas bluntly asserts that, under existing establishment-clause jurisprudence, requiring the Pledge of Allegiance with the words "under God" does violate the First Amendment -- but then argues that the existing jurisprudence should be abandoned in favor of his own novel theory that it doesn't matter because the "establishment" clause of the First Amendment, unlike every other part of it, doesn't apply to state governments.

Theoretically, his argument would permit every state to set up its own official, established church, and, presumably, use governmental power to promote that state church, so long as it didn't overtly infringe on individual free exercise of religion enough to attract federal attention. How'd you like to be an atheist living in Utah, or for that matter, a Mormon living in South Carolina, under this theory of law?