‘So Here’s to the Constitution’

This speech was delivered on Oct. 30, 2004.

By Michael Newdow

I wrote this song during lunch …

Annie Laurie and Dan and of course there’s Anne
Of whom I am the biggest fan
It must be part of some lower plan
But be assured it’s true
So write with a g-clef
I’ll sing it loud in case you’re deaf
that I love FFRF!

Thank you!

When my case went to the Supreme Court, how did they rule? With a 5-3 vote, they said I don’t have standing. It was very odd, because the five justices who said that I don’t have standing are actually the ones who are very liberal with regard to standing. If you look through all their cases, they are the ones who always grant standing. The three who said I do have standing are the ones who are always stingy with standing.

Justice Stevens wrote the opinion. Justice Stevens was the author of a dissent in another case just a few years earlier, called Lewis v. Casey, where he said: “Hey, you guys are making up these standing rules, to avoid ruling on a constitutional question. We should never do that.” Then he subsequently did that in my case.

All of these justices are human. They do what they want to do.

They have this inordinate power. This is quite striking. So I lost 5 to 3 on standing.

The three justices who said I did have standing — Chief Justice Rehnquist, Justice O’Connor and Justice Thomas —all wrote that they thought I should lose the case on the merits. Let me just quickly go through what they said. Chief Justice Rehnquist, first of all, referred to “this country’s belief in God.” Excuse me, Mr. Chief Justice, but there is no such thing as “this country’s belief in God.”

This country is comprised of people who have all sorts of beliefs and he — as a representative of our government — is forbidden from taking this view. If you look at his own words in his Establishment Clause jurisprudence, you’ll know that he’s not allowed to say something like “this country’s belief in God,” at least speaking as the government. If he wants to talk about the demographics of the population, fine. But that’s not what we’re talking about when you are the Supreme Court Chief Justice.

Rehnquist talks about examples of patriotic invocations of God and official acknowledgments of religion in our nation’s history, and says that this abounds. That’s true. We do have a lot of politicians saying, “God loves America,” and all this other stuff.

But we also have, throughout our history, the framers and their constant references to freedom of conscience for everybody. Thomas Jefferson, when he talks about it in his autobiography, says, “they are meant to comprehend within the mantle of its protection, the Jew and the gentile, the Christian and Mohammedan, the Hindu and the infidel of every denomination.” Everybody. This is Thomas Jefferson. I think he knew what he was talking about.

I think the Chief Justice has this a little backward. He says, “I don’t believe that the phrase ‘under God’ in the pledge converts its recital into a religious exercise.” It’s not a question of whether or not this converts the pledge into a religious exercise.

I agree: a Pledge of Allegiance is a patriotic thing. The question is, why do you have religion in the middle of this patriotic thing?

The answer is obviously because the majority wants to stick their religion in our government. That’s precisely why we have the Establishment Clause–so they can’t do that.

Rehnquist says that “others may disagree with the phrase ” ‘with liberty and justice for all,’ ” and that the government is taking a position on that. Government is allowed to take a position on anything–except religion.

So the fact that the government takes a position that we want liberty and justice for all, and that there might be dissenters to that idea, is fine. Government is allowed to do that. What they’re not allowed to do is take positions with regard to religion. Very separate. You would think the Chief Justice would understand this.

Justice O’Connor came in with a kind of similar argument. Justice O’Connor wrote a concurrence in a case called Lynch v. Donnelly. This was about the créche scene, with the birth of the baby Jesus, the manger scene that we have out on Christmas. Lynch v. Donnelly said that’s OK, you can have this in a city display, because this depiction of the birth of the baby Jesus is not religious. Incredible!

In Justice O’Connor’s concurrence, she wrote what I think is maybe the best test. She said nobody should be made to feel like an outsider as a result of their religious beliefs. The government has turned them into an outsider if th government has taken some religious choice.

I think that’s the perfect test. That’s why we all feel like outsiders and that’s one of the reasons why “God” shouldn’t be in the pledge. But right after that — five United States Reports pages later (and the United States Reports are very small pages) — she writes that “these acknowledgments of God serve in the only ways reasonably possible in our culture the legitimate secular purposes of solemnizing public occasions and expressing confidence in the future.”

I don’t think I’ve ever been made to feel more like an outsider than when a Supreme Court justice, who says nobody should be made to feel like an outsider, says that unless I adhere to her religious beliefs, acknowledge her god, I’m incapable of solemnizing a public occasion or expressing confidence in the future.

How insulting is that? Anyhow, Justice O’Connor, in her concurrence in the pledge case, talked about the “reasonable observer.” She’s come up with this concept that there is a “reasonable observer” in terms of religion.

“Reasonable observer” is the test that was used in Gaylor v. United States, where the Freedom From Religion Foundation tried to get “In God We Trust” off the coins and currency. The judge (who was chief judge of the Tenth Circuit at the time), said she thought we needed a reasonable observer to see whether or not “In God We Trust” endorses the idea that there’s a god. “Hmmm … whom should I choose? I’ll think I’ll choose me!”

How can you have a reasonable observer test with regard to religion? Is it reasonable to think some guy rose from the dead based on a book from 2,000 years ago? I personally don’t think that’s reasonable. Is it reasonable to believe that some god came down and handed Joseph Smith these gold tablets that are suddenly missing? I don’t think that’s reasonable. Is it reasonable to think that David Koresh bonds with the lord above, or is the lord reincarnate? I don’t think that’s reasonable.

That’s the whole point of the Establishment Clause! What is reasonable to one person, to another person isn’t reasonable at all, when it comes to religion. This reasonable observer test is bogus. Justice Kennedy has said that what we should have is a “reasonable dissenter” test. I think that’s at least reasonable. I think the reasonable observer test isn’t.

In any event, O’Connor goes through four factors. She says you would look at the history and the ubiquity of this. She says the Pledge of Allegiance has had “under God” for 50 years. That’s long enough? We’ve been around for 200-some years. For 60 years it didn’t have “under God.”

She suggests that 50 years is good enough, if nobody complains. (She alleges that nobody complained.) A justice of the Supreme Court is saying I’m going to let this slide because for 50 years no one complained. This seems to me a little ridiculous.

She also says that there have only been two cases against the pledge. In fact, there were three. She forgets the fact that the first one, by Joseph Lewis, was brought only a year after the first insertion of “under God” into the Pledge of Allegiance. That seems pretty quick. It shows he was interested.

And how many times are you going to beat your head against the wall when all of society is against you? We should say that it is not a violation because atheists didn’t keep trying? We didn’t keep spending this money in a futile gesture to try and overcome this bias that exists throughout society? I don’t think that’s really the proper conclusion by a Supreme Court justice.

She also says that the pledge does not involve worship or prayer. There is nothing in the Establishment Clause that requires worship or prayer to make the inclusion of religion in government unconstitutional. The Supreme Court has already ruled that putting the Ten Commandments on a wall in a school, which is not worship or prayer, is unconstitutional.

She says that’s another reason why it’s OK, that the religious reference is to a generic god, as if that makes it OK. Hey, Jesus is a generic son-god. Could we have one nation “under Jesus”? Then she says it has minimal religious content. Rather offensive to the people who are all going crazy saying they want “god” in there because it has such extraordinary religious content.


Addressing the 2004 national convention.
Photo by Brent Nicastro.

The last concurrer who thought that I had standing was Justice Thomas. I never thought I would be standing here defending Justice Thomas, but he is the only one who at least had some integrity in his decision. Justice Thomas said, first of all, that if we use the jurisprudence of the Supreme Court, Newdow should win. When we look at our case law, there is no question the religious phrase in the pledge violates the coercion test that we used in Lee v. Weisman. Therefore “under God” in the pledge violates the Establishment Clause.

However, Thomas says, to him the Establishment Clause was a federalism provision. And he’s correct. When the Establishment Clause was created, some states had their own religions. So he says, clearly, when the framers came up with the Establishment Clause, they didn’t mean to impose this upon the states. But we have come up with the 14th Amendment, in 1868. The Supreme Court has incorporated the Bill of Rights and put the burdens of those obligations to protect citizens of the federal Bill of Rights upon the states.

Everyone else in the Court has said we should impose the Establishment Clause, as well, upon the states. Thomas is an outsider in his belief. But even if you bought that, and even if you said this is a federalism concern, California (where my case originated) has said that its Constitution is broader and gives more protections than the federal Constitution. So even under Justice Thomas’ evaluation, I still should win there.

The Supreme Court has taken two Ten Commandments cases for this term. One is called Van Orden v. Perry, where a homeless guy in Texas (who was an attorney) somehow got disbarred, and brought this case.

There’s a Ten Commandments plaque out near the capitol building in Austin. Van Orden said that violates the Establishment Clause of the Constitution. There’s 17 or 18 other plaques out there that are not religious. The Fifth Circuit said this is OK, that doesn’t violate the Constitution because we have all these other displays.

The other case is McCreary County v. ACLU. That’s a Kentucky case. It was clear that the government put these Ten Commandments plaques in county courthouses and in schools clearly because of its religious beliefs.

After the ACLU filed its lawsuit, county officials put some other documents around it. When that didn’t work, they put some more stuff around it. The court came out and said, look, we know what you are doing. The lower court and the Sixth Circuit said you couldn’t have the Ten Commandments plaques in public places.

The typical argument made for the Ten Commandments on government property is that it is a foundational document of our government. Let’s think about this for a moment. First of all, there’s the first commandment: “Thou shalt have no gods before me.”

We have an Establishment Clause that says you can have any god you want. What kind of foundational document is this that is completely contrary to what our law is?

The second commandment says that you can’t make graven images, you can’t even make likenesses of the heaven or the earth or the sea. Anyone ever hear of the Discovery Channel? National Geographic? NASA?

They make images of everything. You can make graven images. You can make a crucifix and stick it in urine in this country. You can do anything you want. So obviously our Constitution says exactly the opposite of commandment number two.

Commandment number three says you can’t use the lord’s name in vain. God damn, that sounds ridiculous to me. I mean, Jesus Christ! Anyhow, I think you’re allowed to do that.

Commandment number four says you should observe the sabbath and keep it holy. Today is Saturday, and I just said “god dammit,” and “Jesus Christ,” and it doesn’t sound like I’m keeping it holy. I’m allowed to do that in this country, under our Constitution.

Again, how is this foundational? It’s zero for four.

Commandment number five, “honor thy father and mother.” Obviously, these people have not seen the family law system. So that’s zero for five.

Six, 7, 8 and 9 are the standard ones that every society has. No killing, no adultery, no stealing and no lying. Big deal. I don’t think we attribute that only to the Ten Commandments.

And number ten is thou shalt not covet thy neighbor’s ass. Obviously they haven’t seen thong bikinis and tight jeans. So I think you’re allowed to do that, too.

Clearly, these Ten Commandments are not foundational documents for our society. As a matter of fact, as you see, a lot of them are completely contrary to what our society is based on and what our laws are based on.

The pledge case that I brought is over, but there will be new cases. I’m planning challenges in as many circuits as I can get. I will start off next month. I’m going to be filing again in the Ninth Circuit.

When I brought this case initially, it got turned into this custody issue. I said, I, Michael Newdow, am a citizen of the United States. I have a right to have a Pledge of Allegiance that doesn’t have religious dogma that I disagree with. And I pay taxes, forget about the fact that I have a kid. I pay taxes, and your tax dollars are going to teachers to teach children that my religion is wrong. I have standing on that basis.

I said I go to the school board meetings where my child is in school. They start off every school board meeting with Pledges of Allegiance. I’ve got to sit there and pledge allegiance to this. I have standing personally. I also said I happen to be a father, and so I have standing as a father.

Well, when the Ninth Circuit ruled in my favor, they said we don’t have to worry about the other standing basis. They gave me standing as a father. I actually had discussions with some other attorneys and said, wait a second, they threw out my taxpayer standing here. And everybody said what are you going to go fight it for? You want to appeal? You won!

So I didn’t appeal it. Then it went to the Supreme Court. The Supreme Court said you don’t have standing as a father, and, unfortunately, because I didn’t appeal the other standing rulings, I lost.

So I’m bringing the case again, as a taxpayer. I pay taxes to teachers, I have standing in that regard, I think. And in case I don’t, and they come up with some cockamamie excuses, I also have other plaintiffs, parents who have children in the public schools, so they’ll be joining me. We’ll get up there. That’s in the Ninth Circuit.

I have volunteers right now in ten of the twelve circuits who have agreed to be plaintiffs. In fact, if anyone knows anybody who is a parent who has children and they recite the pledge in public school and they would like to participate, please have them contact me. I’d like to get back to Justice O’Connor, who says: look–nobody cares about this, nobody’s brought a suit, and show her I’ve got 30-40 people who have brought this suit.

I think if we go to every circuit, one of the circuits is bound to rule in our favor. And hopefully it will get back to the Supreme Court and hopefully it will come out in our favor.

So here’s to the Constitution. Thanks very much.

Michael Newdow Freethought Hero

In introducing the award, Annie Laurie Gaylor recounted some of the history of Newdow’s historic challenge:

“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 reeducated 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 in 2003, 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.

“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.’

“Replied 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.

“Newdow 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.’

” ‘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.’ “

Freedom From Religion Foundation