Just as we predicted, the Supreme Court didn’t do anyone any favors a year ago by relying solely on a legal technicality to overturn the 9th Circuit’s misguided Pledge of Allegiance decision.  (Read “The Pledge of Allegiance Decision: Imprudently Standing on a Technicality.”)  The constitutional case against the Pledge is back, and the First Amendment is broken again.

On Wednesday, a federal district judge in California ruled that he “remains bound by the Ninth Circuit’s holding” — even though the Supreme Court overturned the decision — because a case that “is reversed on other grounds may still have precedential value” and the “remaining portion of the circuit court’s decision binds the district court below.”

Getting beyond the legal speak, the district judge asserted he had to follow the 9th Circuit’s much-derided ruling that a public “‘school district’s policy and practice of teacher-led recitation of the Pledge, with the inclusion of the added words “under God,” violates the Establishment Clause.’”  And, as a result, the district judge once again declared the voluntary recitation of the Pledge in the public schools unconstitutional and said he would “enter a restraining order to that effect.”

The decision only assures yet another trip up the federal appellate ladder with the final destination likely to be the highest court in the land.  In other words, the nine justices only bought themselves some time — probably a few years — by avoiding the constitutional question of whether the inclusion of the phrase “one Nation under God” in our national Pledge of Allegiance violates the First Amendment.  None of the arguments have changed since the Court decided the case for the first time in 2004, although, by the time the case reaches the Supreme Court again, a couple of the justices may have.

From the very beginning, the Center for Individual Freedom has been clear in explaining that the Constitution does not require the government or anyone else to cleanse all references to God from the public sphere.  (Read “One Nation, Under Siege by Establishment Clause Revisionism.”)  After all, if freedom of religion means anything at all, it must mean that we all have the right to celebrate our religion (or non-religion) openly — with others being tolerant of those views.  Indeed, if we must remove any and all religious references from the public sphere, then we would need to start by editing our own Constitution, which acknowledges being “Done in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven.”  (Emphasis added.)

If and when the Pledge faces judgment again in the Supreme Court, the Center will be there to defend it in its entirety.  Until that time, we can only hope that the justices have finally learned that the Supreme Court’s primary responsibility is to provide the lower courts with clear guidance through the thicket of constitutional conundrums too often created by the High Court’s own ad hoc decisionmaking.