One Nation Under God (1 cent)

It is a coincidence that, today, a federal district judge in San Francisco ruled that requiring the pledge of allegiance to be recited in public schools is unconstitutional because of the inclusion of the words "under God". It cited a 9th circuit court ruling as precedent.

The 9th circuit case, if I understand correctly, was the one that the U.S. Supreme Court threw out on the basis of lack of standing. If the plaintiff had no standing, then how can the 9th circuit ruling be precedent? On that basis alone, it would not surprise me if the 9th circuit overruled the district court, in order to avoid a repeat of the controversy from last year.

But let us say it goes beyond that. What happens next?

This is a terrific example of what Noah Feldman (see yesterday's blog) was talking about. He would probably argue that there is a strong literal argument that the pledge with God violates the constitutional mandate against establishment of religion. But he might also argue that popular pressure is so much in favor the keeping the pledge as-is that a contrary result would alienate the majority unnecessarily. And, since government funding is not directly involved, and no real harm comes from the inclusion of the phrase, it should be left as is.

This may be the best case imaginable to test his thesis. Let's see what happens.