09/21/05 — The pledge: It isn’t a question of liberal or conservative

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The pledge: It isn’t a question of liberal or conservative

President Dwight D. Eisenhower appointed William Brennan to the U.S. Supreme Court. Eisenhower later said he had made a mistake, because Brennan became one of the most liberal justices in the court’s history.

This comes to mind because of several things that are going on now, 50 years later.

One is the hearing on the nomination of Judge John Roberts as chief justice and the resulting discussion of the importance of legal precedent. The other is Wednesday’s ruling by a federal judge that the Pledge of Allegiance is inappropriate for recitation in the public schools.

In making his ruling on the pledge, Judge Lawrence Karlton of Sacramento, Calif., said he was bound by an opinion issued by a higher court, the 9th Circuit Court of Appeals.

That opinion had been had been handed down in another suit filed by Dr. Michael Newdow on behalf of his daughter. It was appealed to the U.S. Supreme Court.

The Supreme Court didn’t rule on its merits. It said, however, that Newdow lacked the standing to sue because he was not the guardian or representative of his daughter, and it dismissed the suit.

Newdow went back and found some people who would let him file essentially the same suit on behalf of their children. That was the case in which Karlton made his ruling.

This judge put such store in legal precedent that he followed it even in a case that the Supreme Court had thrown out. We might as well have had an automaton behind the bench.

The 9th Circuit Court of Appeals undoubtedly will uphold Karlton’s illogical ruling. Then it will go to the Supreme Court.

Newdow and his stand-in fellow plaintiffs claim the pledge should not be recited in public schools because it contains the words “under God.” That, they say, makes the recitations a violation of the separation of church and state.

Brennan, the creme de la creme of liberal justices, disagreed, as he stated more than once.

In an opinion that he wrote about another case in 1963, the late justice said, “... The reference to divinity in the revised pledge of allegiance ... may merely recognize the historical fact that our Nation was believed to have been founded ‘under God.’ Thus reciting the pledge may be no more of a religious exercise than the reading aloud of Lincoln’s Gettysburg Address, which contains an allusion to the same historical fact.”

In 1984 Brennan wrote: “...We have noted that government cannot be completely prohibited from recognizing in its public actions the religious beliefs and practices of the American people as an aspect of our national history and culture .... I would suggest that such practices as the designation of ‘In God We Trust’ as our national motto, or the references to God contained in the Pledge of Allegiance to the flag can best be understood ... as a form a ‘ceremonial deism,’ protected from Establishment Clause scrutiny chiefly because they have lost through rote repetition any significant religious content ... ”

Other justices have expressed support for the pledge for other reasons, including some members of the current court. When they strike down Karlton’s ruling — as they almost certainly will — they should not be dismissed as conservative ideologues. Common sense wears no political cloak.

Published in Editorials on September 21, 2005 9:19 AM