Critical Thinking: The Establishment Clause.
In 2004 the Supreme Court dismissed on technical grounds a case challenging the inclusion of the words “under God” in the Pledge of Allegiance as a violation of the establishment clause of the First Amendment. (Newdow v. United States Congress, Elk Grove Unified School District, et al., 542 U.S. 1 (2004)). (The words “under God” were Inserted into the Pledge of Allegiance by Congressional act in the 1950’s as part of a propaganda war against “godless communism”.) Whilst dismissing this suit, the Court acknowledged that this question would probably return. (When a case is dismissed there is no ruling either way on the issue at hand.) Carefully study Patterson’s discussion of the Establishment Clause (pp.114-116 11th.Ed., pp.104-106 12th.Ed.), paying particular attention to all the precedent rulings described and to the guidelines which the court has developed.
Based on this information, how would you expect the Court to rule on the issue of the continued inclusion of the words “under God” in the Pledge of Allegiance if the issue were to be brought before it again?[unique_solution]
The Supreme Court uses precedent (rulings in previous cases) and tests developed in previous cases to help in making its decisions. Your task in this exercise is to identify the precedent, or precedents, which provide the closest parallel to the issue of the inclusion of the words “under God” in the Pledge. Is this inclusion similar to the display of the Ten Commandments on monuments in the grounds of government buildings (Van Orden v. Perry (2005) endnote 34), or is it more similar to the display of the Ten Commandments on courthouse walls (McCreary County v. American Civil Liberties Union (2005) endnote 35)? Your analysis must explain the reasoning behind your conclusion. Also, if you conclude that the Court would allow the words “under God” to remain in the Pledge you must explain why that continued inclusion passes all three parts of the ‘Lemon’ test. On the other hand,if you conclude that the Court would order the words “under God” removed from the Pledge as a violation of the establishment clause you must explain why their inclusion fails at least one part of the ‘Lemon’ test.
(Note: This is an area in which many people have strong opinions, but it is NOT your personal opinions that I am looking for; rather, it is your understanding of the Court’s approach to this area of constitutional interpretation, and how precedents and the tests should be applied to the issue of the phrase in the Pledge of Allegiance. Your conclusion must be supported by direct reference to the precedents and tests. Cases referred to in support of your argument must be accurately cited – use the chapter end-notes for this purpose. Note also that the question asked precludes the possibility that the case will again be dismissed, as it was in 2004. You must decide whether the Court would allow the words to remain in the Pledge, or rule that they must be removed)