EDITORIAL
Justices disappoint in 'under God' ruling

In a ruling that seems more expedient than wise, the U.S. Supreme Court has managed to postpone its inevitable showdown with the constitutionality of the words "under God" in the Pledge of Allegiance through a rationale that inadvertently harms a large class of innocent bystanders — noncustodial parents.

In a 5-3 decision, the justices said that because the California father who brought a lawsuit against the phrase did not have custody of his daughter, he was not entitled to speak for her in the courts.

The court's announcement came on the 50th anniversary of the adoption of the revised pledge. The original version, written in 1892, spoke of "one nation, indivisible," a reference to the Civil War and the divide between the North and South.

At the height of the Cold War in 1954, Congress amended it to refer to "one nation, under God, indivisible, with liberty and justice for all."

The Supreme Court recognized that it was in a difficult position: 91 percent of the public, according to a recent Gallup poll, want the pledge to remain as is, while only 8 percent want "under God" removed. For many, we suppose, the words are cultural or ritualistic rather than religious in any real sense.

Still, the plaintiff reminded the court that its own words from an earlier case seemed logically to compel removal.

In finding last year to have the words removed, the 9th Circuit Court of Appeals cited a 1992 decision by the Supreme Court that said a rabbi's nonsectarian prayer at a public high school graduation violated the First Amendment because nonreligious students might feel psychological pressure to join in, even if not formally required to.

Though public school students have long been free to remain silent during the recitation of the pledge, the 9th Circuit Court ruled the plaintiff's daughter had to choose between saying "under God" or risk ostracism by skipping it.

Rather than ruling on the merits, the Supreme Court gained time by finding the father lacked standing to bring the lawsuit. It's only a matter of time before other parents bring a similar lawsuit, which will quickly make its way to the high court.

Worse, the court misread California law on the rights of noncustodial parents. No California case, according to Erwin Chemerinsky, a law professor at the University of Southern California, ever has held that a father lacked the authority to sue on behalf of his child.

Thus the Supreme Court ducked on precisely the kind of tough question that it exists to resolve. It should either have removed the words, or explained how under the First Amendment they could remain.