The Newdow/Under God case ended with a whimper -- not surprisingly really, the Supreme Court decided to find it "prudent" to not accept his right to sue (standing). Justice Stevens, the justice most likely to vote on his side on the merits, wrote the opinion. The core issue, in language that sounded like Justice Kennedy's concerns during oral argument:
"This case concerns not merely Newdow's interest in inculcating his child with his views on religion, but also the rights of the child's mother as a parent generally and under the Superior Court orders specifically. And most important, it implicates the interests of a young child who finds herself at the center of a highly public debate over her custody, the propriety of a widespread national ritual, and the meaning of our Constitution."
And, since the mother has custody, it is she who has the right and duty to challenge the daughter's expose to the allegedly religious Pledge, if she finds it appropriate. The Court held that mere exposure does not hinder the father's rights to communicate with his child concerning religious beliefs, but I do think his parental rights are strong enough that he can challenge state action that interferes with it by slanted religious doctrine. [See also here on the importance of not confusing what is at stake as being a mere private action among parents.] All the same, it is just a matter of time before atheist parents bring suit and avoid this dodge, but at the very least, the Court bought itself a few years.
[Courts do often avoid controversial decisions by finding some reason, perhaps not totally credible, to not have to face the touchy issue. The ruling can be defended on these grounds without the belittling Dahlia Lithwick provides of the father's claim when she made a form of this argument when she suggested that "the three-judge 9th Circuit panel weirdly concluded that noncustodial parents have some kind of affirmative right to run roughshod over the other parents' choices." Well yes, as even the majority implies in passing when saying he didn't have a strong enough claim here regarding his constitutional rights as a parent, but might have if the facts were different.]
Chief Justice Rehnquist with Justices O'Connor and Thomas would have went to the merits. Justice Rehnquist (joined with O'Connor) defended the inclusion of "under God" with a stream of public statements of presidents and our national anthem that suggests our "national culture allows public recognition of our Nation's religious history and character." It is not a religious exercise but "a declaration of belief in allegiance and loyalty to the United States flag and the Republic that it represents."
His penchant for mixing public officials speaking with official public school programs is as long lasting as it is misguided. And, the First Amendment does not allow the state to dictate that belief in God is part of what the flag and republic stands for. This, not just a recognition of the religious beliefs of the nation at large, is what is at stake here. If Justice Scalia would have took part, he probably would have shared the Chief Justice's sentiments.
Justice O'Connor repeats her endorsement test, which bars state action that : "sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community." Well, sure. This sounds exactly what happened to atheists and others who oppose this practice.
So, why isn't it applied here? "History and Ubiquity" -- in other words, belief in God is so broadly accepted, and rarely challenged, the few who are upset about the program are basically out of luck. Not convinced? Let's see. "Absence of worship or prayer" -- it's secular really, mainly descriptive of our community, some of the intent of the legislators aside. This ignores clear evidence otherwise, including public understanding of its religious character. Claims that there is here an "absence of reference to particular religion" (or is it "minimal religious content?") also doesn't exactly hold up to scrutiny. Particular religions honor God in this particular way, others do not, and one amici brief in particular was concerned with believers in God who opposed the practice.
Thus, "any coercion that persuades an onlooker to participate in an act of ceremonial deism is inconsequential, as an Establishment Clause matter, because such acts are simply not religious in character." And, in general, the coercion here of the support of the uh secular "under God" message is too mild to be a matter of concern. Unless you are, you "well-intentioned" misguided one.
Justice Thomas accepts that the practice would fall under current doctrine: "Adherence to Lee 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." Likewise, "the Court has said, in my view questionably, that the Establishment Clause 'prohibits government from appearing to take a position on questions of religious belief.'" True.
Don't be fooled -- Justice Thomas is just building it up to knock it down. Justice Thomas is dubious about even applying the Establishment Clause to the states, a clause that "does not purport to protect individual rights." This is a truly dubious reading, ignoring that not mixing government with religion was in large part seen as a way to protect religion. Ignoring the Fourteenth Amendment, considering it as a federalism matter ("Congress shall make no law") also avoids the issue of federal territories and other national actions -- as applied to them, how is it protective of states? In fact, doesn't a religiously slanted national motto in some fashion violate the very principle?
Justice Thomas respects free exercise and has spoken about his strong support of religion per se. He does support the idea of non-preference, ignoring that the law violates it by choosing to endorse one way to acknowledge (honor?) a particular deity. Finally, he argues that the practice does not provide legal coercion that prohibits free exercise. Peer pressure and the like is not state mandated, the likely effect of the state's action not relevant for constitutional purposes. Justice Thomas in the long run dishonors religious liberty, a somewhat surprising thing for a religious conservative to do.
[As an aside, he cites a book by Philip Hamburger entitled Separation of Church and State. I found it a slanted incomplete history as did many others. The decision as a whole suggests the imperfect nature of originalism as a jurisprudence philosophy.]