The Pledge of Allegiance, Redux

A federal judge in Sacramento ruled that the inclusion of the words "under God" in the Pledge of Allegiance is unconstitutional. The plaintiff is Michael Newdow, the same atheist who sued several years ago to remove the words from the Pledge on behalf of his daughter. Last time, the Supreme Court overruled him on the grounds that he had no custody of his daughter and so lacked standing to sue on her behalf, but now he's representing three additional atheist parents, who presumably do have custody over their children.

In theory, if this goes up to the Supreme Court, this should pass. The Supreme Court unanimously rejected Newdow, but Stevens, Ginsburg, Beyer, Souter, and Kennedy said he lacked standing, whereas O'Connor, Rehnquist, and Thomas said he did have standing but the current phrasing of the Pledge was constitutional (Scalia had recused himself, but we all know how he'd have ruled).

In practice, I don't think the Supreme Court will support Newdow this time. It's clear to me that the five justices who said he lacked standing ruled that way simply as a way of avoiding controversy. Now if this suit gets to the Supreme Court, they will no longer have this as cover; however, since most Americans still think the words "under God" in the Pledge are fine, the politically expedient thing for them to do will be to claim that previously they only looked at standing, but now that they have considered the actual issue, they've concluded the words are constitutional.

However, the one thing I think will be different from the situation in 2002 is the extent of the backalsh, if any. Even if there is a national outrage, now that liberal Democrats have started finding their voice, some will support Newdow. In 2002, all Senators voted to condemn the decision, except Jesse Helms, who was in hospital, and who would no doubt join the other Senators. If this ever comes up to a vote now, I predict that at most 90 Senators will vote to condemn the decision, and at least 5 will vote not to condemn it.