The Pew Forum on Religion and Public Life has an interesting debate on the subject of the pledge of allegiance and the case before the Supreme Court right now. The participants are Douglas Laycock and Jay Sekulow, names familiar to anyone who follows constitutional law and religious liberty cases. Laycock, from the University of Texas Law School, is perhaps the most respected academic voice on religious freedom matters in the nation. He is no firebreathing anti-religious liberal, having been the primary author of the Religious Freedom Restoration Act that was passed in 1993 (and later overturned by the Supreme Court). Sekulow is the Chief Counsel for the American Center for Law and Justice, Pat Robertson’s answer to the ACLU, and has argued numerous cases before the Supreme Court on religious liberty and the establishment clause.
One of the striking things about Sekulow, in my view, is how different he is when he’s speaking in that type of forum than when he’s appearing on the 700 Club or the many other Christian TV and radio shows he appears on. When speaking in a legal context, he is bright, engaging and reasonable, even when I think he’s wrong. When he’s appearing before conservative Christian audiences, he engages in the simplistic and overheated rhetoric of demagogues with little regard for the truth. The most blatant example I can think of is a good decade ago, watching him go on the 700 Club after the Lamb’s Chapel decision. He had argued the Lamb’s Chapel case before the Supreme Court and was justifiably happy that the decision came down 9-0 in his favor (as was I, it was an easy case and the decision was a correct one). But he tried to portray the decision as a victory over the ACLU, which was utter nonsense. The ACLU had in fact been on his side in the case and filed an amicus brief on behalf of Lamb’s Chapel. But that didn’t fit into the product they were selling to the flock, which was in essence, “We’re standing up to the ACLU Goliath and we’re winning, send us money so we can keep winning”, so reality was conveniently reversed to fit the marketing campaign.
Anyway, in this forum he’s pretty reasonable, I think. And he said something that is a bit of a surprise to me and I’d like to find out if this is true or not. He said:
Let’s talk about the more recent history, and that is, what happened in 1954? Now, of course, the issue upon which certiorari is granted – and I am frequently reminded of that both when I’m watching arguments and when I argue them myself – is not the congressional action here, which is interesting. The United States asked for review of the 1954 congressional act amending the Pledge of Allegiance. The Supreme Court denied review there. They granted the school district’s policy for review, which is a policy that said the school day will start with a patriotic expression. The Pledge of Allegiance would meet that patriotic expression.
If this is true, it changes the calculus for this case a bit. If the 1954 Congressional action which put the words “under God” into the pledge was under review, as I thought it was, then a simple application of the Lemon test would seem to throw it out, with little argument on the other side. Congress made absolutely clear that their intent was to advance religious faith in schoolchildren, which is a clear violation of the Lemon test prong that a law must have a clear secular purpose. But if what is up for review is the school board’s policy rather than the Congressional action on those words, the basis for argument is considerably different. I guess I’m going to need to go look at the oral argument and see on what basis it was actually argued. In the meantime, enjoy the debate linked above.