E-Mail This Article to a Friend FREEDOM WATCH Prediction or prophecy? ‘Under God’ will remain in the Pledge of Allegiance. BY HARVEY A. SILVERGLATE

Last week, the US Supreme Court heard arguments over whether schoolchildren can be led in saying the Pledge of Allegiance to the flag with the controversial phrase "under God" included. Those two words are of relatively recent vintage: Congress inserted them in the 1950s to show that the Lord supported Americans against "atheistic Communism." But that Cold War drumbeat grates on the ears of Michael Newdow, an atheist, who in 2002 brought suit on behalf of his minor daughter, a student in a California public school, arguing that such language violated her First Amendment rights.

At issue is whether the two-word phrase is more prayer or patriotic avowal. If the court decides the former, the wording will be deemed unconstitutional, even if recital is voluntary; if the justices decide the latter, the phrase will be regarded as without religious significance and therefore not an unconstitutional state-established religious exercise.

Two cases from the 1980s shed light on how finely the court can split hairs over the First Amendment’s establishment clause separating church and state. In the 1984 decision Lynch v. Donnelly, the court allowed the City of Pawtucket, Rhode Island, to erect a festive Christmas display that included reindeer, Santa Claus’s house, a Christmas tree, a banner emblazoned with SEASONS’ GREETINGS, candy-striped poles, a teddy bear, and a Nativity scene. Rejecting the claim that such decorations represented an effort at unconstitutional "establishment" of a state-sponsored religion, the court said the display merely aimed "to celebrate the Holiday" — a "legitimate secular purpose."

Five years later, in Allegheny County v. Greater Pittsburgh ACLU (1989), the court rejected a different crèche — one topped with an angel bearing a banner proclaiming GLORIA IN EXCELSIS DEo ("Glory to God in the Highest"). The court reasoned that the Pittsburgh crèche’s significant religious message — expressed by the banner — crossed the line from the secular to the sacred. Allegheny County’s sin was that "it has chosen to celebrate Christmas in a way that has the effect of endorsing a patently Christian message: Glory to God for the birth of Jesus Christ."

Yet in cases involving school prayer, the court has been less ambiguous: it has outlawed teachers’ leading students in classroom prayer. Going even further, it has ruled that prayers at high-school graduations are impermissible even when students are not required to participate.

School exercises with a patriotic or civic cast, however, operate under looser restrictions. In the 1943 case West Virginia Board of Education v. Barnette, the court ruled that public schools could lead children in a daily flag pledge (this was 11 years before "under God" was inserted) as long as no child was forced to participate. There, because the pledge was viewed as a secular rather than a religious intrusion, offering an opt-out was sufficiently protective of the student’s rights.

Likewise, the result in Newdow will rest on whether the justices view "under God" as sacred or secular. If sacred, Newdow’s daughter, though not forced to pledge, might feel unconstitutionally pressured to conform to an essentially religious exercise. If, however, the phrase is deemed secular and patriotic, Barnette rather than the school-prayer cases would govern — the Pledge would be fine as long as students may opt out as a matter of personal conscience. This latter outcome is presaged by Justice David Souter’s question about whether "under God" has become "so tepid, so diluted ... from a compulsory prayer that in fact it should be, in effect, beneath the constitutional radar," essentially a "ceremonial deism." Justice Stephen Breyer similarly asked whether God in the pledge "is so generic" and "inclusive" that even non-religious people should live with it. A "generic" God thus becomes a safe civic symbol rather than a meaningful religious one — the penalty religion pays by seeking entry into the secular world.

There’s one wrinkle: Michael Newdow never married his daughter’s mother, and the mother’s legal custody gives her, not the father, control over the child’s spiritual and educational life. The court could rule that the father has no legal standing to sue, thus wiping out the Court of Appeals’ decision without having to decide the constitutional issue. That disposition would probably be technically correct. But the court, recognizing that the question would likely return, might grant Newdow standing and rule on the "under God" question.

The most likely ruling? The Pledge will be deemed essentially secular and patriotic, rather than religious. As long as participation is voluntary, it will be deemed consistent with the First Amendment. Such a decision would surely dilute the concept of God in the public sphere and take slight liberties with the First Amendment. But it would also avoid tampering with the basic ban against school prayer while averting the predictable political backlash (and calls for a constitutional amendment) if God were to be stricken from the Pledge. Frantic predictions of the court’s taking a wrecking ball to the wall of separation between church and state, in other words, will be proven unfounded. The case, which many civil libertarians hoped would never be brought for fear of creating a bad church-state legal precedent, hands the court a perfect opportunity to do what it does best — namely, muddle through the briar patch.