“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.'” So said Michael Newdow, appearing pro se, without counsel — and holding his own and then some – before the Supreme Court of the United States.
Newdow, who is a doctor, a lawyer, and an atheist, won an appeals court ruling declaring the Pledge of Allegiance unconstitutional, and insisted before the Supreme Court — as he had successfully before the Ninth Circuit in San Francisco in 2002 — that since God, by Newdow’s lights, doesn’t exist, his daughter shouldn’t have to recite a pledge of allegiance that includes the words “under God.”
“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 on her heart and say that her father is wrong. The government is supposed to stay out of religion.
More than one paper noted that the Justices seemed unmoved by Newdow’s arguments. “Despite his surprisingly strong performance before the high court,” said the Los Angeles Times, “Newdow’s chances of winning his argument remain slim. In their questions and comments, most of the justices sounded as though they would like the case to just go away.” The Washington Post observed that “only one member of the court, Justice John Paul Stevens, seemed sympathetic to Newdow’s position.” And the New York Times noted that “justices across the ideological spectrum appeared to be searching for reasons he should lose, either on jurisdictional grounds or on the merits.”
Indeed, the jurisdictional grounds seemed to offer the reluctant justices a way out. There’s a question mark over Newdow’s “standing” to bring the case on behalf of his daughter. that he only now has joint custody of his nine-year-old daughter (he first brought suit four years ago); and he’s in a fight with her mother (whom he never married) in the California courts. What’s more, the mother, Sandra Banning, is a Christian, who does not even mind her daughter having to say “under God” in the pledge.
The court could, on this basis, send the case, Newdow v. Elk Grove School District, back to the Ninth Circuit.
But, writes New York Times columnist William Safire, they shoudn’t pass on the case. “The justices shouldn’t use the issue of standing to punt, thereby letting this divisive ruckus fester.”
The only thing this time-wasting pest Newdow has going for him is that he’s right. Those of us who believe in God don’t need to inject our faith into a patriotic affirmation and coerce all schoolchildren into going along. The key word in the pledge is the last one.
More than a few commentators have pointed out that Newdow has the merits on his side. The Post cites legal analysts as calling the pro-pledge case “a result in search of a legal rationale,” and quotes Eugene Volokh, a professor of constitutional law at the University of California at Los Angeles, as saying, “If you look at the logic of the cases writ large, take their logical principles and try to apply them in the abstract, then Newdow wins, because the pledge seems to endorse religion in some measure.”
Solicitor General Theodore Olson, arguing against Newdow, ran into this problem. The pledge, he argued, is “a ceremonial, patriotic exercise,” not a call to religious faith. To which Newdow replied, reasonably, that Olson’s argument contradicted itself — that the government was both insisting that it was important to maintain “under God” in the pledge, and denying that it had much religious significance.
And so it went: Newdow consitently had the better arguments.
Why can’t a child simply opt out of saying the pledge? (Safire makes much the same point). That’s a “huge imposition to put on a small child,” said Newdow; and anyway, young children are not likely to opt out when their teacher leads the class in saying the pledge, and they shouldn’t be required to identify themselves as outsiders.
Justice Stephen G. Breyer suggested the phrase may refer to a “supreme being,” not a particular god. “It’s generic [and] comprehensive,” he said. Newdow had him on that one. “I don’t think you can say ‘under God’ means no God,” he responded.
The Pledge of Allegiance to the U.S. flag was written in 1892. At the height of the Cold War in 1954, Congress inserted “Under God” to counter the “godless communism” of the Soviet Union.
The reference to God in the pledge is “ceremonial,” Elk Grove argues in its brief, and the pledge “is simply a patriotic expression, that includes a reference to God, which reflects a long standing philosophy of government.”
The Bush administration’s brief refers to “under God” as a permissible acknowledgement of “the role that faith in God has played in the formation, political foundation, and continuing development of this Country.”
Newdow, whose case is supported by the Atheist Law Center, the A.C.L.U., A.D.L. and what the Times calls “assorted iconoclasts,” argues that the words are an “affirmation of religious belief.”
He has reason on his side, and he put in a bravura performance before the Supreme Court. But Newdow’s chances of winning are slim. Still, his vision, stated in his closing comments, is a compelling one.
“There’s a principle here, 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.”