Michael A. Newdow, the California atheist who wants the words 鈥渦nder God鈥� out of the Pledge of Allegiance, told the U.S. Supreme Court last week that he suffers serious injury to his rights as a father every time his 4th grade daughter is asked to recite the pledge in her public school classroom.
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| Bryana Russell, left, a 13-year-old from Bristol, Conn., prays outside the U.S. Supreme Court last week with others who want to keep 鈥渦nder God鈥� in the Pledge of Allegiance, while atheists and others opposed to the wording express their views. 鈥擩ames W. Prichard/91制片厂视频 Week. |
鈥淚 am an atheist. I don鈥檛 believe in God,鈥� said Dr. Newdow, an emergency-room physician with a law degree who is representing himself. 鈥淎nd every school morning my daughter is asked to stand up, face that flag, place her hand over her heart, and say that her father is wrong.鈥�
In a passionate but sure- footed performance that belied his scanty courtroom experience, Dr. Newdow deftly parried the justices鈥� questions as he laid out his case for why teacher- led recitations of the pledge violate the U.S. Constitution. One of his quick- witted responses sparked an outburst of applause鈥攗nusual in the high court鈥� prompting Chief Justice William H. Rehnquist to threaten to clear the courtroom.
Yet if the justices saw much merit in his arguments, little of that sympathy was on display during the lively oral arguments on March 24. Last fall, Dr. Newdow had gotten one of the court鈥檚 toughest questioners, Justice Antonin Scalia, to recuse himself because of public remarks criticizing a lower-court ruling in the case. But throughout the hour-long session, the remaining justices pulled no punches as they seemed to explore possible rationales for holding that the pledge does not run afoul of the First Amendment鈥檚 prohibition of a government establishment of religion.
Hoping to aid them in that task was a lawyer for the Elk Grove school district outside Sacramento, Calif., and U.S. Solicitor General Theodore B. Olson, who is helping the 55,000-student district defend its policy on the pledge in Elk Grove Unified School District v. Newdow (Case No. 02-1624).
Both stressed in their oral arguments and in court papers that the words 鈥渦nder God鈥� reflect the nation鈥檚 religious heritage and the historical belief that individuals鈥� 鈥渋nalienable rights鈥� derived from a supreme being and not from the state.
鈥淭he Pledge of Allegiance is not what this court has said the establishment clause protects against, that is to say, state-sponsored prayers, religious rituals or ceremonies, or the imposition or the requirement of teaching or not teaching a religious doctrine,鈥� Mr. Olson said.
Opt-Out Cited
Sounding a theme echoed by several justices, Justice Ruth Bader Ginsburg noted repeatedly that schoolchildren can opt out of saying the pledge. That right was established in 1943鈥攂efore the pledge included 鈥渦nder God"鈥攚hen the high court ruled in West Virginia State Board of 91制片厂视频 v. Barnette that schools could not compel youngsters to recite it.
鈥淚t鈥檚 two words sandwiched in the middle of something, and the child doesn鈥檛 have to say those words,鈥� she said.
鈥淏ut the government is not allowed to take a position on that,鈥� Dr. Newdow responded. 鈥淕overnment is saying there鈥檚 a God.鈥�
Justice David H. Souter said 鈥渁 fair reading鈥� of the pledge would be as an affirmation that 鈥渢hat鈥檚 the way the republic ought to be conceived, as under God.鈥�
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| Atheist Michael A. Newdow speaks to reporters after arguing against the use of 鈥渦nder God鈥� in the pledge before the high court. 鈥擩ames W. Prichard/91制片厂视频 Week. |
But he suggested that over the years the implied religious affirmation might have become 鈥渟o tepid, so diluted, and so far 鈥� from a compulsory prayer that it should be, in effect, beneath the constitutional radar.鈥�
Dr. Newdow rejected that view, saying, 鈥渇or the government to come in and say, we鈥檝e decided for you this is inconsequential or unimportant is 鈥� an arrogant pretension.鈥�
When he sees the flag and thinks of the pledge, he added, 鈥渋t鈥檚 like I鈥檓 getting slapped in the face every time, bam, 鈥� this is a nation under God, your religious belief system is wrong.鈥�
Among the recurrent questions was whether the significance of 鈥渦nder God鈥� had changed since Congress inserted the words in 1954, and whether Americans are effectively praying when they say them.
鈥淒o you think the pledge has the same meaning today as when 鈥� the words 鈥榰nder God鈥� were inserted?鈥� Justice John Paul Stevens asked Mr. Olson. He replied that the pledge acknowledges the religious basis of the constitutional framers鈥� belief that the people鈥檚 power to form a new, independent government came from God.
鈥淚n that sense, 鈥� that has that same significance to this country as it did in 1954,鈥� he said. At the same time, he argued, the ceremonial rendition of the pledge in context repeatedly over the years had made clear that it 鈥渋s not a religious invocation.鈥�
Dr. Newdow later cited the political outcry that followed a June 2002 opinion in his favor by a three-judge panel of the U.S. Circuit Court of Appeals for the 9th Circuit, in San Francisco, as proof that the words retain a distinctly religious meaning. Among other reactions to the ruling, the U.S. Senate voted 99-0 for a resolution supporting the pledge, and President Bush denounced it.
鈥淐learly, it has enormous significance to the American public,鈥� Dr. Newdow said.
Broad Meaning?
As one rationale for upholding the current pledge, Justice Stephen G. Breyer suggested that 鈥渦nder God鈥� could be interpreted as so 鈥済eneric鈥� as to include even the 鈥渞eligious-type beliefs in the minds of people who are not traditionally religious.鈥�
鈥淭hen does your objection disappear?鈥� he asked Dr. Newdow.
鈥淚 don鈥檛 think that I can take 鈥榰nder God鈥� to mean no God,鈥� he replied.
The pledge is 鈥渘ot perfect,鈥� Justice Breyer went on to suggest, 鈥渂ut it serves a purpose of unification at the price of offending a small number of people like you.鈥�
Dr. Newdow said it had served the same purpose during the 62 years between its composition in 1892 and its revision by Congress. The words 鈥渦nder God鈥� represent 鈥渞eligious dogma鈥� that is needlessly divisive, he said.
Picking up on that theme, Chief Justice Rehnquist prompted Dr. Newdow to acknowledge that the amendment of the pledge had sailed through Congress unopposed 50 years ago. 鈥淲ell, that doesn鈥檛 sound divisive,鈥� the chief justice remarked.
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| Gini Wellman of Texas, top left, Luann Pearson of New Mexico, and Pat Mills of Alabama try to block a banner held by atheists outside the U.S. Supreme Court. 鈥擩ames W. Prichard/91制片厂视频 Week. |
鈥淭hat鈥檚 only because no atheist can get elected to public office,鈥� Dr. Newdow retorted, triggering a round of laughter and applause. The chief justice then sternly warned that he would 鈥渃lear the courtroom if there鈥檚 any more clapping.鈥�
Because of the court鈥檚 previous rulings restricting public school prayer, whether the pledge should be seen as a prayer is important.
Dr. Newdow cited one such ruling鈥� the 1992 Lee v. Weisman decision that struck down clergy-led prayers at public school graduations鈥攁s support for his view that his daughter is being coerced to say the pledge even though she may opt out.
鈥淭hat was a prayer,鈥� protested Justice Sandra Day O鈥機onnor, in reference to benediction at issue in the graduation case.
鈥淲ell, I鈥檓 not sure this isn鈥檛 a prayer,鈥� Dr. Newdow replied, adding that President Bush had said it was one.
鈥淲e certainly don鈥檛 take him as the final authority on this,鈥� Chief Justice Rehnquist said, earning him his own round of laughter.
Legal Standing at Issue
Terence J. Cassidy, a Sacramento lawyer who represented the Elk Grove district, spent his time before the justices mostly on the threshold question of whether Dr. Newdow even has legal standing to challenge the district鈥檚 policy.
While Justice Anthony M. Kennedy said he was troubled by the issue, Justice O鈥機onnor observed that the high court generally defers to lower courts on matters of standing. Although it divided 2-1 on the merits of his case, the panel of the 9th Circuit court ruled unanimously that Dr. Newdow had standing to bring the case on his own behalf.
Mr. Cassidy argued that Dr. Newdow lacked standing in part because his daughter鈥檚 mother has the final say regarding the girl鈥攁 point Dr. Newdow disputes. The girl鈥檚 mother, who was never married to Dr. Newdow, is raising the child as a practicing Christian and does not object to her saying the pledge as written.
鈥淲e believe this court should defer and not interfere with what amounts to the mother鈥檚 rights and interests in the 鈥� educational upbringing of the daughter,鈥� Mr. Cassidy said.
A decision in the case is expected by late June.
