Terry Eastland, publisher

TEN YEARS AGO in a case called Lee v. Weisman, the Supreme Court decided that a state may not sponsor the sort of prayers long customary in America at middle or high school graduation ceremonies--invocations and benedictions--not even when the saying of those prayers is rotated among representatives of a community's various faiths.

The five Justices certain of the unconstitutionality of such prayer made no comment, however, on the fact that right before the invocation was uttered (by a local rabbi) the students at Nathan Bishop Middle School in Providence, R.I., stood and said the Pledge of Allegiance. Now, the Pledge, you may know, happens to contain those two little words, "under God."

In dissent, Justice Antonin Scalia noted that the students had indeed said the Pledge, and he proceeded to examine that fact in light of the reasoning advanced in the majority opinion. Under the First Amendment's Establishment Clause, wrote Justice Anthony Kennedy for the Court, "government may not coerce anyone to support or participate in religion or its exercise, or otherwise to act in a way which establishes a state religion or religious faith, or tends to do so." The graduation prayer, Justice Kennedy concluded, flunked the coercion test. But so, contended Justice Scalia, would the Pledge:

"If students were psychologically coerced to remain standing during the invocation, they must also have been psychologically coerced, moments before, to stand for (and thereby, in the court's view, take part in or appear to take part in) the Pledge."

Justice Scalia then asked: "Must the

Last week the U.S. Court of Appeals for the Ninth Circuit answered that question in the affirmative. The country is still shaking with outrage, and, with the nation at war, no politician is eager to speak in favor of the 2-to-1 decision in Newdow v. United States.

But Newdow, while wrongly decided, is not an implausible application of decisions by the Supreme Court, the Lee case in particular. Newdow is shocking because until now no federal appeals court has seen fit to say that references to God, whether in the Pledge or on our coins or in our state mottoes, are unconstitutional. A district court here or there has said that. But that an appeals court has so pronounced means that the strict separationist project of eliminating all such references needs only one more decision to achieve its goal--a decision by the nation's highest court.

Conventional wisdom holds that the Supreme Court would conclude that the Pledge is not unconstitutional. But as Justice Scalia showed in the Lee case, the Court has articulated doctrine that it could use to rule against the Pledge. The doctrine, moreover, is not just of one kind. Indeed, what is striking about the Ninth Circuit's decision is that it examined the Pledge (and found it wanting) under no fewer than three tests the Supreme Court has used in recent decades to decide Establishment Clause cases. What sane person would deny that five Justices might use one or more of the doctrines to say "under God" is, constitutionally speaking, overmuch?