Protecting the constitutional principle of the separation of state and church
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Freethought Today

Vol. 21 No. 3 - Published by the Freedom From Religion Foundation, Inc. -
April 2004

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"With Liberty and Justice for All"

Newdow's Appeal Spellbinds Nation

The New York Times' veteran court reporter Linda Greenhouse termed Michael Newdow's oral argument before the Supreme Court on March 24 "spell-binding."

Wrote Greenhouse: "no one who managed to get a seat in the courtroom is likely ever to forget his spell-binding performance."

Nina Totenberg, of National Public Radio, who has been watching the Supreme Court for 30 years, hailed Newdow's performance as "virtuoso."

Newdow, an emergency room physician with a law degree, encountered naysayers when he asked to argue his own case challenging "under God" in the Pledge of Allegiance before the Supreme Court.

After diligently rehearsing before several moot courts, Newdow opened his oral argument with a dramatic statement:

"I am an atheist. I don't believe in God. And every school morning my child is asked to stand up, face that flag, put her hand over her heart and say that her father is wrong."

Newdow re-educated the country with his "David and Goliath" victory in 2002, when the Ninth U.S. Circuit Court of Appeals ruled the 1954 addition of "under God" in the Pledge of Allegiance unconstitutional. Countless articles and editorials since the ruling, which was upheld by the Ninth Circuit en banc in 2003, have reminded the public that the pledge, as written by liberal minister Francis Bellamy in 1892, was originally secular. The religious words were added after a campaign by the Knights of Columbus.

Newdow effected another "atheist miracle"--persuading Justice Anthony Scalia to recuse himself from the case. In an address to a Knights of Columbus rally last year, Scalia demonstrated he had prejudged the case. Newdow called him on it, and he willingly absented himself.

The remaining Court did not let Newdow off lightly.

Chief Justice William H. Rehnquist repeated the argument of U.S. Solicitor Gen. Theodore B. Olson that the pledge states the common belief that the nation was founded by God-believers. "It's descriptive," Rehnquist said. "You can agree with it or not, but that doesn't make it a prayer."

Newdow responded that it is still a religious exercise: "It's an affirmation of religious belief."

Justice Sandra Day O'Connor argued: "We have so many references to God. The words 'In God We Trust' on coins. No child is being required to say a prayer."

Newdow's response: 'The Establishment Clause does not require a prayer. To put the Ten Commandments on the wall was not a prayer, yet this Court said that violated the Establishment Clause. To teach evolution or not teach evolution doesn't involve prayer, but that can violate the Establishment Clause. The issue is, is it religious, and to say this is not religious seems to me to be somewhat bizarre."

Justice Stephen G. Breyer suggested the phrase refers to a "supreme being," not a particular god. "It's generic, comprehensive."

"I don't think you can say 'under God' means no God," Newdow rejoined. "I deny the existence of God. Government needs to stay out of this business altogether."

Justice Ruth Bader Ginsburg, referring to the Supreme Court's 1943 ruling that children of Jehovah's Witnesses could not be required to salute the flag, said:

"There's an option here. The child does not have to say it at all."

"I think that's a huge imposition to put on a small child," Newdow pointed out. "Imagine you're the one atheist with 30 Christians there and you say to this child, let's all stand up, face the flag, say we are one nation under God and we're going to impose on a small child the--this immense amount of power, prestige, and financial support."

Newdow, later responding to similar questioning by Justice David Souter that the phase was so "tepid" it "is beneath the constitutional radar," said: "When I see the flag and I think of pledging allegiance, it's like I'm getting slapped in the face every time, bam, you know, 'this is a nation under God, your religious belief system is wrong.' "

In answer to a question by Justice Kennedy, Newdow said the religious language in the pledge "fails the endorsement test, it fails the outsider test. Imagine you're this one child with a class full of theists and you have . . . everyone imposing their view on you. It fails every test this Court has ever come up with."

Justice Clarence Thomas did not ask a single question. Reporters agreed that the Court's remaining old-guard liberal, Justice John Paul Stevens, sounded the most sympathetic toward Newdow's arguments.

The keenest sparring came after Newdow called the addition of "under God" divisive. The Chief Justice, feigning ignorance of the 1954 vote by Congress, asked Newdow what the vote had been 50 years ago. When Newdow confirmed it apparently was unanimous, Rehnquist replied:

"Well, that doesn't sound divisive."

Said Newdow: "That's only because no atheist can get elected to public office." When the courtroom erupted in applause, Rehnquist threatened to clear the room.

Justice Breyer proposed the idea that the pledge imperfectly unifies the nation "at the price of offending a small number of people like you."

"There is nothing in the Constitution saying what percentage of the population gets excluded," said Newdow. Eloquently, he added that "for 62 years this pledge did serve the purpose of unification, and it did do it perfectly. . . . the Pledge did absolutely fine and got us through two world wars, got us through the Depression, got us through everything without God. . . ."

Reporter Linda Greenhouse wrote of Newdow:

"He managed a trick that far more experienced lawyers rarely accomplish: to bring the argument to a symmetrical and seemingly unhurried ending just as the red light comes on.

" 'There's a principle here,' he told the justices in his closing moments, 'and I'm hoping the court will uphold this principle so that we can finally go back and have every American want to stand up, face the flag, place their hand over their heart and pledge to one nation, indivisible, not divided by religion, with liberty and justice for all."

Newdow's challenge is complicated by his custody battle with the mother of his 9-year-old daughter. Sandra Banning, a born-again Christian, sang "God Bless America" after the hearing with other religious pledge supporters. She filed a brief written by Kenneth Starr in favor of the school district. Although the parents have joint custody, Banning is primary custodian. The court could avoid the constitutional question by finding that Newdow does not have standing to sue. If there were a 4-4 tie, as has been speculated, the Ninth Circuit ruling would stand, but the decision would technically apply only to the nine states within the circuit.

Associated Press released a poll at the time of the oral arguments claiming 9 out of 10 Americans support "under God" in the Pledge of Allegiance. Under the Bill of Rights, which protects minority rights of conscience from the tyranny of the majority, such a poll should be irrelevant. However, proponents of the religious pledge have vowed to pass a constitutional amendment permitting religion in the pledge if the Court rules in Newdow's favor. The two houses of the US Congress have, with near unanimity, twice condemned the Ninth Circuit ruling.

"If they care about the Constitution, it will be 8-0 [in my favor]," Newdow has said.

A ruling is expected by early July.


April 2004 Excerpts