The US Supreme Court failed the nation when it ducked the issue of whether the words "under God" in the Pledge of Allegiance recited in public schools violate the Constitution. Some may applaud the court's cleverness in avoiding a highly controversial political issue. But in doing so, it made bad law concerning the rights of noncustodial parents to sue on behalf of their children and, even worse, abdicated its fundamental role in the US system of government.
The lawsuit was brought by Michael Newdow, an atheist who asserted that his daughter had the right to be free from government-sponsored religious activity in her public school. Mr. Newdow claimed that the school, near Sacramento, was violating the provision of the First Amendment that says government may not make any law respecting the establishment of religion. The Supreme Court ruled that Newdow lacked standing to sue because he did not have legal custody of his daughter.
The flaw in this reasoning is that it wrongly assumes that only parents with legal custody of their children have an interest in their children's education and religious upbringing. Newdow has been enormously involved in his daughter's schooling, regularly attending parent-teacher conferences and school events. The fact that the girl's mother has legal custody should not keep Newdow from being able to object to his daughter's exposure to what he sees as religious indoctrination in violation of the First Amendment.
The Supreme Court purported to base its decision on California law concerning the rights of noncustodial parents. But no California case ever has held that a father lacked the authority to sue on behalf of his child. Indeed, California law is clear that both parents, custodial and noncustodial, have an equal say in the religious upbringing of their child.
Of course, the court's decision wasn't really about the rights of custodial versus noncustodial parents at all; it was an effort to avoid a controversial issue. But the court, at most, has only bought itself time. Surely other parents who do have custody of their children will quickly bring suit, and the issue will again make its way to the Supreme Court.
In ducking the hard constitutional question, the Supreme Court failed to clarify an issue that affects children throughout the country. The role of the Supreme Court is to be our society's arbiter of constitutional issues, even when the results are unpopular. The Constitution created federal judges with life tenure precisely so that they would have the courage to face the hard questions.
As a matter of First Amendment law, the Pledge of Allegiance case should be easy. For more than 40 years, the Supreme Court has held that government-sponsored religious activity is not allowed in public schools. The words "under God" are inherently religious. If the pledge said "One nation under Jesus" or "One nation under Allah," every judge in the country would see that as unconstitutional.
"One nation under God" is just as offensive to an atheist.
This is not just "ceremonial," in the way that the words "In God We Trust" are on American currency. No one feels pressure to say "In God We Trust" when they spend money. But every day, children feel pressure to say "under God" in public school. Such government-sponsored religion is a clear violation of the establishment clause.
Of the nine justices, one recused himself and three made it clear in a concurring opinion that they believed "under God" in the pledge did pass constitutional muster. But five justices left the question open. That's one ray of hope: Soon enough the issue will be back before them, and maybe next time they will have the courage to make the unpopular but legally correct ruling: "Under God" in the Pledge of Allegiance has no place in public schools.
• Erwin Chemerinsky is a professor of law and political science at the University of Southern California. This article appeared first in the Los Angeles Times.