WASHINGTON -- When the U.S. Supreme Court punted earlier this year on a challenge to the phrase "under God" in the Pledge of Allegiance, a popular interpretation was that the justices were reluctant to throw red meat to Congress in an election year. If so, they have been repaid for their restraint with just the sort of legislative recklessness they were trying to avoid.

		Michael McGough is an editor at large in the PG's National Bureau (mmcgough@ nationalpress.com).

By a 5-3 vote, the court ruled that Michael A. Newdow, the California atheist who challenged the recitation of the pledge in his daughter's classroom, lacked legal standing because he didn't have primary custody of the child. Had the court addressed the merits of Newdow's claim that "under God" was indistinguishable from an official school prayer, it might narrowly have upheld his position -- precipitating an election-year effort on Capitol Hill to overturn the decision by amending the Constitution. So the court held its fire.

It needn't have bothered. Still pending in Congress are two proposed constitutional amendments that would protect the pledge from court challenge. And last week the Republicans who control the House Judiciary Committee, including Rep. Melissa Hart of Bradford Woods, approved legislation that would deprive federal courts -- including the U.S. Supreme Court -- of jurisdiction over "any question pertaining to the interpretation of, or the validity under the Constitution of, the Pledge of Allegiance ... or its recitation."

Such "court-stripping" is becoming a habit with congressional Republicans. In July the House voted to strip federal courts of jurisdiction over constitutional challenges to part of the federal Defense of Marriage Act, which says that states need not recognize same-sex marriages from other states.

In defending last week's vote to keep the federal courts out of Pledge of Allegiance cases, House Judiciary Committee Chairman F. James Sensenbrenner noted that state courts could still consider challenges to the pledge.

But it is federal courts that have been champions of constitutional rights. For example, it was the 3rd U.S. Circuit Court of Appeals that struck down a Pennsylvania Pledge of Allegiance law last month. That law required that parents be informed if their children exercised their right -- established in a landmark 1943 U.S. Supreme Court ruling involving Jehovah's Witnesses -- not to pledge allegiance to the flag.

Congress probably does have the power to strip lower federal courts of jurisdiction over a category of case, since it has the greater power to abolish "inferior" federal courts altogether. Whether Congress can strip the Supreme Court of subject-matter jurisdiction is a harder issue.

Article III of the Constitution does say that the high court shall have appellate jurisdiction "with such exceptions, and under such regulations as the Congress shall make." But the same Article III says judicial power "shall extend to all cases, in law and equity, arising under this Constitution [and] the Laws of the United States." The addition of "under God" to the pledge in 1954 took place by an act of Congress.

Even if the full House goes along with this court-stripping gambit, there is no guarantee that the Senate would follow suit. But that won't matter to Republicans whose main goal is to force John Kerry and John Edwards to vote on "pro-Pledge of Allegiance" legislation.

So, despite the caution -- or cowardice -- of the Supreme Court, it looks as if the Pledge of Allegiance will be a political issue this year, just as it was in 1988 when George W. Bush's father assailed Michael Dukakis for vetoing a bill requiring teachers to lead their pupils in reciting the pledge.

If the debate must take place, however, "protectors" of the pledge should have the intellectual honesty to say why they believe schoolchildren must pledge allegiance not only to the American flag but also to "one nation under God."

Defending "under God" before the Supreme Court, then-Solicitor General Ted Olson implausibly argued that the phrase was an exercise not in theology but in history -- "a civic and ceremonial acknowledgement of the indisputable historical fact that the [Constitution's] framers [believed] they had a right to revolt because God gave them the right to declare independence."

The pro-pledge demonstrators who gathered outside the Supreme Court carrying signs declaring "Keep USA 1 Nation Under God" clearly did not regard "under God" as a historical footnote . Their emotion and energy -- and the seriousness with which they are taken in Congress -- are the best refutation of the idea that this controversy was not about religion.

It was about religion -- but it was also about patriotism and what the First Amendment scholar Rodney A. Smolla calls the Aristotelian strain in American thinking about the law: the notion that "law exists to make men good, by binding men together in a cohesive and just community."

There is another theme in the American political tradition. It was celebrated in Justice Robert Jackson's opinion in the 1943 Supreme Court decision upholding the right of children not to pledge allegiance to the flag. "If there is any fixed star in our constitutional constellation," Jackson wrote, "it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion, or force citizens to confess by word or act their faith therein."

Those who would strip the federal courts of the right to defend that freedom should have the courage of their convictions and admit that they prize orthodoxy -- religious orthodoxy and political orthodoxy -- above the individualism celebrated by Justice Jackson.