One Nation, Under 'Culture'

Another day, another big surprise.

It didn't occur to me that the court might make use of the weakness of Michael Newdow's custodial claims to avoid the substantive issue of whether "under God" violates the free exercise clause of the First Amendment. Justice Stevens' majority Opinion describes this course of action as 'prudential.'

In our view, it is improper for the federal courts to entertain a claim by a plaintiff whose standing to sue is founded on family law rights that are in dispute when prosecution of the lawsuit may have an adverse effect on the person who is the source of the plaintiff's claimed standing. When hard questions of domestic relations are sure to affect the outcome, the prudent course is for the federal court to stay its hand rather than reach out to resolve a weighty question of federal constitutional law.

I can see what they mean: it would be such a controversial decision to remove "Under God" that the Court shouldn't do it in a case where the father has questionable standing. (Of course, this reasoning seems to open the way for a married couple to file an identical lawsuit. The implication is that the decision in a repeat case would be much closer to 50-50; possibly the phrase 'Under God' would then be found unconstitutional)

Of course, the media didn't really play up the custody/standing question when the arguments were being presented to the court a few months ago. Then, the emphasis was on Newdow's charisma (a lawyer by training, he was representing himself, often impressively), and on the places where the arguments of Ted Olsen (for the government) seemed to fall apart (see this New Republic piece for example). Now, Dahlia Litwhick, at least, seems quite cognizent of the custody issue. Funny how things become obvious once the Supreme Court says them...

Culture One annoying hobbyhorse, which relates this legal issue to debates in the humanities, is the use of the word 'culture'. Even now, it is troubling that Justice Rehnquist's opinion relies so heavily on it:

All of these events strongly suggest that our national culture allows public recognition of our Nation's religious history and character. In the words of the House Report that accompanied the insertion of the phrase "under God" in the Pledge: "From the time of our earliest history our peoples and our institutions have reflected the traditional concept that our Nation was founded on a fundamental belief in God." H. R. Rep. No. 1693, 83d Cong., 2d Sess., 2 (1954).

But "national culture" is a distraction from the substantive issue, which is whether the phrase "under God" is a form of religious expression. Congress's original arguments (recurring in the Rehnquist/O'Connor opinion) that phrases like "Under God" or "In God We Trust" refer to a merely "historical" idea of God strike me as specious.

The simple truth is, the phrase "Under God" positively affirms the existence of God. It may be in our "national culture," but it goes against our national law. People (here, Rehnquist) often use the word 'culture' conservatively, to indicate an attribute of a society that runs so deep it can never be changed. But nothing is permanent; the state makes changes that affect the social order, and run contrary to majority opinion and tradition, all the time. There are times when the state has to intervene against 'culture' in the interest of creating reforms that improve civil rights for its citizens. This was one of them...

[Note: I wrote a somewhat tentative post on this back in April.]