Without going into too much detail, here are some of the most disturbing aspects of the opinions of Justices Rehnquist, O'Connor and Thomas. Keep in mind that these opinions do not have the effect of law, but may carry persuasive value in later cases.
The only justice to directly address the rights of atheists was Chief Justice Rehnquist:
There is no doubt that respondent is sincere in his atheism and rejection of a belief in God. But the mere fact that he disagrees with this part of the Pledge does not give him a veto power over the decision of the public schools that willing participants should pledge allegiance to the flag in the manner prescribed by Congress.
In other words, if Congress prescribes that a patriotic recitation shall have the words "under God" in it, then an atheist has no cause to complain. Justice Rehnquist continued:
The recital, in a patriotic ceremony pledging allegiance to the flag and to the Nation, of the descriptive phrase 'under God' cannot possibly lead to the establishment of a religion, or anything like it.
Get that? It's a "descriptive phrase," not a profession of any religious principle. But would it be equally descriptive, equally non-religious, if the Pledge said "under no God?" We are left to wonder.
Justices O'Connor and Thomas seemed to take the view that atheists have no rights to challenge Government-endorsed pronouncements that refer to God. Justice O'Connor at first seemed to say that religious acknowledgements that favor one religion over another are improper:
As a result, no religious acknowledgment could claim to be an instance of ceremonial deism if it explicitly favored one particular religious belief system over another.
But hold onto your hat. Justice O'Connor then went on to marvel that the words "under God" were so inclusive and at the same time non-sectarian:
The Pledge ... does not refer to a nation "under Jesus" or "under Vishnu," but instead acknowledges religion in a general way: a simple reference to a generic "God." Of course, some religions--Buddhism, for instance--are not based upon a belief in a separate Supreme Being. But one would be hard pressed to imagine a brief solemnizing reference to religion that would adequately encompass every religious belief expressed by any citizen of this Nation. The phrase "under God," conceived and added at a time when our national religious diversity was neither as robust nor as well recognized as it is now, represents a tolerable attempt to acknowledge religion and to invoke its solemnizing power without favoring any individual religious sect or belief system. (emphasis added)
I find this quotation to be among the most startling, and the most bothersome. It suggests that
the Government CAN favor religious belief over atheism as long as the Government does not specify which particular religion is being favored. Atheists could rightly look on this opinion as saying that they are second-class citizens. Justice O'Connor drives the point home later, saying "the Constitution does not guarantee citizens a right entirely to avoid ideas with which they disagree." In other words, atheist who disagree with the Pledge should shut up.
If we just look at the language in Justice O'Connor's opinion that I've underlined, it would seem that the most expeditious solution would be for the Government not to take sides at all! Instead of trying to please most of the people, while excluding the rest, wouldn't it be better simply not to have the words in question at all?
Justice Thomas's opinion is disturbing in its own right, and in a way, is a striking contrast to Justice O'Connor's opinion. Justice O'Connor basically says that "We've always done it this way'--including references to God in public ceremonies--"so we can continue doing it." Justice Thomas, however, seeks to change the law entirely. If Justice Thomas were to apply precedent, he says, then Dr. Newdow would win the case!
Adherence to [school invocation case] Lee [v. Weisman] would require us to strike down the Pledge policy, which, in most respects, poses more serious difficulties than the prayer at issue in Lee. A prayer at graduation is a one-time event, the graduating students are almost (if not already) adults, and their parents are usually present. By contrast, very young students, removed from the protection of their parents, are exposed to the Pledge each and every day.
...
I conclude that, as a matter of our precedent, the Pledge policy is unconstitutional. I believe, however, that Lee was wrongly decided. Lee depended on a notion of "coercion" that, as I discuss below, has no basis in law or reason. The kind of coercion implicated by the Religion Clauses is that accomplished "by force of law and threat of penalty." (emphasis in original)
As long as atheists are in no danger of being fined or tossed in the pokey for refusing to recite the Pledge, they have no First Amendment right to complain.
Justice Thomas hammers this point home by going on to opine that the Establishment Clause protects
states rather than
individuals, and that states can establish religions if they wish to do so.
President Bush holds up Justice Thomas as a judge that applies the law and does not make the law. If this opinion is any indication, Justice Thomas is exactly the opposite.
One might assume--given my above discussion--that it is only atheists who are upset by the words "under God" in the Pledge. This is not so. There are many people of faith who are troubled by these words also. Some of them feel that the government has no business telling them that the country is "under God." Others feel that the name of the Almighty is to be used exclusively for prayer, praise and thanksgiving, and if Justice O'Connor is right, "under God" is nothing more than ceremonial deism that falls into none of these categories.
Edited for spelling and clarity.
