11. UNDER GOD

The catalyst in the most recent “under God” Supreme Court case was Michael A. Newdow. A practicing physician in San Francisco and a nonpracticing attorney (who would ultimately represent himself before the U.S. Supreme Court), Newdow was (and is) an atheist who confronted the issue of the Pledge because he did not want his young daughter to be forced to acknowledge any God by reciting the Pledge. Also, he argued, it wasn’t enough just to have the child refrain from either saying the Pledge in full or saying it at all since he felt that it would cause her to become a focus of scorn by other students and, perhaps, adults. In fact, he stated that simply making his daughter stand and listen to the Pledge violated First Amendment rights.

Similar cases had been brought before various courts in the past arguing similar points; Newdow had the tenacity to keep going. He brought a lawsuit against his daughter’s school district of Elk Grove, California. The suit was quickly rebuffed in 2000. But then Newdow presented his position on appeal in 2002 before the U.S. Court of Appeals for the Ninth Circuit.

The Ninth Circuit has jurisdiction over nine states—Alaska, Washington, Idaho, Montana, Oregon, Nevada, California, Hawaii, and Arizona—as well as the Pacific territories of Guam and the Northern Mariana Islands. The large geographic area encompasses a full spectrum of political leanings, from the traditionally liberal areas of San Francisco to the strongly conservative ones of Alaska, making any action about the Pledge ripe for controversy. But no one expected this decision: the Ninth Circuit actually decided in Newdow’s favor. This decision, in post-9/11 America, shocked much of the nation. The court declared that “under God” was unconstitutional and that it violated the Establishment Clause of the First Amendment. The majority decision in this case stated:

In the context of the Pledge, the statement that the United States is a nation “under God” is an endorsement of religion. It is a profession of a religious belief, namely, a belief in monotheism. . . . The text of the official Pledge, codified in federal law, impermissibly takes a position with respect to the purely religious question of the existence and identity of God. . . .

In addition, the court declared that having schoolchildren recite the Pledge was coercive and that it put children into a position of an “unacceptable choice between participating and protesting.”

Few decisions on this appellate level have ever gotten as much immediate political attention as this one did. Congressmen tumbled out of the Capitol in Washington, D.C., literally elbowing each other aside to get to a photogenic position on the Capitol steps to condemn the court’s decision and to recite the Pledge for any news camera available.

The Dukakis lesson had been learned. And it was, after all, a congressional election year. Silence on the matter could only be considered anti-Pledge. Movement began almost immediately to introduce a constitutional amendment to protect the Pledge—and its “under God” phrase—from any threat, judicial or legislative.

The case was actually sent back to the Ninth Circuit two more times.

The first rehearing of the case involved the fact that Newdow was not actually married to the child’s mother. He also did not have full custody of the child. The mother, Sandra Banning, disagreed with Newdow’s position and wanted her daughter to believe in God and to recite the Pledge. The mother was previously granted full legal custody of the child, meaning the mother had the sole right to make decisions about the child’s education and welfare. This first return to the Ninth Circuit was to decide whether or not Newdow even had the right, or the standing, to bring the question of the Pledge to court. The court ruled that Newdow did indeed have the standing to object to unconstitutional government action affecting his child, even though he was a noncustodial parent.

The Elk Grove School District appealed again to the Ninth Circuit asking this time for an en banc court hearing—meaning a hearing by all the member judges of the court instead of just a panel of judges as had originally decided on the case. The motion was denied.

With a considerable amount of political support, including a strong statement against the court from President George W. Bush, the Elk Grove School District pushed the case up to the U.S. Supreme Court. The Supreme Court agreed to hear the case. Oral arguments were presented on March 24, 2004.

Unlike the Jehovah’s Witnesses, who received financial and legal support from such groups as the ACLU, Newdow weathered his suit almost alone. The ACLU at first didn’t think his case was winnable and later decided that the issues were so potentially divisive during a presidential election that raising them would undermine their larger political goals. Newdow solicited help from the American Jewish Congress (AJC), which also refused to help, even though the group had been known to be strong supporters of the separation of church and state. Even the Americans United for Separation of Church and State (AU) refused Newdow’s request for support because of a professed lack of resources as well as uneasiness about the political ramifications. Eventually the ACLU and the AU joined in presenting a “friend of the court” brief in support of the Newdow position.

Still, when Newdow entered the courtroom, he was pretty much on his own—and only eight of the nine Supreme Court justices were ready to hear the case. Justice Antonin Scalia recused himself at Newdow’s request because Scalia had publicly criticized the Ninth Circuit decision in a speech the year before. There was the possibility, therefore, that the Court could split 4–4 and end up making no decision at all.

Scores of briefs were filed with the Court representing both sides of the issue, including one from the George W. Bush administration throwing full support and legal arguments behind maintaining the “under God” phrase.

As the date neared for oral arguments, I contacted the Court’s press office in hopes of getting into the press gallery. The official who turned me down explained that the Court was hard pressed to fill requests even for all the major media representatives because interest in the case was so intense. I decided to go to the capital anyway and hang around the Court to see who I might talk to.

March 23, 2004: the eve of the oral arguments. It was a crisp afternoon in Washington. The Capitol gleamed alabaster white against a limpid blue sky. Across First Street, by the marble steps of the Supreme Court building, I found a group of college students gathered on the sidewalk. They were a smiling bunch, easily approachable. Most were freshmen from George Washington University and American University. They had come to be first in line for the few seats in the Court chamber available to the public.

The students were split down the middle on the “under God” issue. All spoke earnestly and thoughtfully in laying out their positions. A young woman from Long Island saw the phrase as clearly religious with no place in a civic ritual, and a fervent young Unitarian from Connecticut took the same position. A fellow from Puerto Rico said the phrase should be kept in because it reflects the nation’s historic beliefs. A government-affairs major from Delaware, who carried a pocket edition of the Constitution, also argued that “under God” should stay in. “It all goes back to John Locke,” he said with a gentle smile, “the idea that the rights of mankind come from God.”

The calendar said spring, but as the afternoon turned toward dusk a lingering winter chill descended. The rumpled sleeping bags and blankets the students had with them looked as though they would offer flimsy protection for overnight camping on the sidewalk. The young people seemed unconcerned though. They buzzed in anticipation of witnessing the landmark case.

As the evening wore on, someone got on a cell phone to order pizza and succeeded on only the second try to find a place that would deliver to a sidewalk. A tour bus pulled up and members of a church group piled out for a prayer vigil. I left for dinner with friends, and when I came back to check on the students found them as fresh and voluble as ever. One of the churchwomen with a friend living around the corner had invited the students over to warm up and to use the facilities, which they had done in rotation. A long line had formed behind them, with what looked like many more people than would be able to get into the Court the next day. I went back to my friends’ place to sleep.

Upon my return, in the half-light of dawn, I found the students looking remarkably chipper, still glowing with excitement. Dominick, the young man with the pocket Constitution and the de facto leader of the group, had a surprise for me. One of the group had left. “You can take his place,” Dominick said. Wow. All I had expected was to stay with the students until they entered the building and then to pick up the buzz around the Court. Thanks to Dominick and the boy who left, I might get in.

After waiting another hour or so on the sidewalk, security guards brought us up a few steps to a plaza at the foot of the main staircase. Dominick pointed to the frieze above and identified the stone figures: “That one is Moses, there’s Confucius, and the other one is Solon.” A few of the students tossed remarks about the case back and forth, still engaged in amiable argument after the long night on the sidewalk. However the case turned out, I found myself thinking, Thomas Jefferson would have been pleased to see these young people debating on the steps of the nation’s high tribunal.

The guards began counting off the people waiting in line. Of the forty or so seats available, the students got the first ten and the writer they had taken under their wing got number eleven.

Inside, the Supreme Court chamber evoked a Roman temple. Fluted marble columns rose on both sidewalls and a huge crimson curtain hung behind the black-robed justices. To one side of the elevated bench where the justices sat, the media section was packed. The mahogany benches in the spectator area were filled with observers who had some connection to the case or some other entrée. I sat with the students and the other general-admission guests in the very back, on cushionless bentwood chairs of the sort you might find stored away in the basement of a YMCA. Ushers and marshals controlled every movement in the crowded courtroom. A secret service agent roamed our area of the chamber, one hand holding his suit jacket slightly open.

The oral arguments began with the U.S. solicitor general making the case for leaving the Pledge as it is. Then came Michael Newdow, who had brought the original suit. An emergency-room physician with a law degree but little courtroom experience, he argued as his own advocate. Newdow put on a crackling performance, methodically building his case and parrying challenges from the justices. (“This reviewer gives him five stars,” Dahlia Lithwick later wrote in Slate. “He may still lose this appeal, but he absolutely won the day.”)

Nearly all of the justices offered different personal points of view. For example, Justice Ruth Bader Ginsburg pointed out that Newdow’s daughter had the option of not saying the Pledge. Newdow countered by saying that just holding the ritual was coercive (which, incidentally, was a point agreed upon in the Ninth Circuit decision).

Justice David Souter felt that the term “under God” was expressed in such a rote manner that it had little true meaning anymore and was “too tepid, so diluted, so far from compulsory prayer that it is beneath the Constitutional radar.” Justice John Paul Stevens mused similarly when he questioned whether “under God” had the same meaning and importance of impact as it had when it was first introduced into the Pledge.

Chief Justice William Rehnquist said he didn’t think the Pledge sounded like a prayer. Newdow agreed, but pointed out that the Ten Commandments were not prayers, yet the Supreme Court had ruled that they had no place in public schools. Newdow also pointed out that in the Bush brief, Bush himself said the Pledge constitutes a prayer. Chief Justice Rehnquist responded by saying, “Well, but he—We certainly don’t take him as the final authority on this.” That remark prompted laughter from the crowd.

The justices also expressed concern that if “under God” was unconstitutional, then other forms of government recognition of God, as in, for example, “In God We Trust,” would also be unconstitutional. As an atheist, Newdow couldn’t have agreed more and, in fact, would have desired that all references to God be removed from government ceremonies, slogans, and coinage. (Newdow would later head a group that unsuccessfully sued to remove all religious references during the inauguration ceremonies for Barack Obama.)

At one point, Newdow even trumped Chief Justice William Rehnquist. Newdow contended that adding “under God” had a divisive effect on the nation, separating unbelievers from theists. Rehnquist asked Newdow what the tally had been in the 1954 vote to adopt the “under God” phrase.

“It was apparently unanimous,” said Newdow. “There was no objection. . . .”

“Well, that doesn’t sound divisive,” Rehnquist responded with a hint of smugness.

There was a titter in the gallery.

“That’s only because no atheist can get elected to public office,” Newdow countered. The gallery erupted in laughter and applause. Rehnquist reddened.

“The courtroom will be cleared if there’s any more clapping,” he sputtered.

After the hearing, on the plaza in front of the Court, reporters crowded around Newdow. On the sidewalk below, free expression reigned. Demonstrators with signs that read “One Nation Under God” faced others carrying placards that said “Don’t Make Religion a Condition of Patriotism” and “Hi, Mom, I’m an atheist!”

Three months later, on June 14, 2004, Flag Day (the second such Pledge decision handed down on Flag Day), the Supreme Court issued a ruling that overturned the Ninth Circuit decision on technical grounds. The opinion said Newdow lacked the legal standing to file a complaint in the first place because his daughter’s mother, who never married Newdow, had controlling custody of the child. Although the effect was to preserve the “under God” Pledge, the finding sidestepped the basic question as to whether public school recitations of the 1954 text violated separation of church and state.

Three justices dissented for different reasons and each wrote their own opinion. Each, however, believed that the phrase “under God” was Constitutional.

Reactions to the decision were, of course, split between the two competing camps.

Newdow and his supporters were especially outraged with the Court’s conclusion that he had no right to raise a question about how his child was treated in school. “I’m a father,” said Newdow, “and I have a right to make decisions for my child. I wonder, if she were being hit in the head with a 2-by-4 in school, would the Court also say I have no right to object? It just doesn’t make sense.”

Supporters of an unchanged Pledge were relieved to have dodged a bullet, but also disappointed that the matter was not settled definitively. As a Boston Herald columnist put it, “As victories go, it was a shallow one, but at least the U.S. Supreme Court reached the right conclusion in telling Michael Newdow . . . to take a hike.”

As a result of the Supreme Court’s action, the previous ruling in the Ninth Circuit court was reversed as a procedural matter, meaning that “under God” remained in the Pledge in all the states in the Ninth Circuit.

Newdow himself proclaimed that there were “fellow atheists standing in the wings.” And indeed, following Newdow’s defeat, other groups and individuals have attempted to bring the same issue before the court. They have targeted school districts within the purview of the U.S. Court of Appeals Ninth Circuit. By focusing on this geographic area, the strategy is, of course, that if the case gets to the Appeals Court level that arguments against the Pledge will receive the same positive reaction that was expressed in the majority decision in the Newdow case that pressed the review on up to the Supreme Court. That majority decision said, in part: “A profession that we are a nation ‘under God’ is identical, for Establishment Clause purposes, to a profession that we are a nation ‘under Jesus,’ a nation ‘under Vishnu,’ a nation ‘under Zeus,’ or a nation ‘under no god,’ because none of these professions can be neutral with respect to religion.”

Clearly the Supreme Court has not been in any mood to make such a similar declaration. But that doesn’t mean that it wouldn’t at some time in the future. Those opposing the wording of the Pledge know this. They realize the only way to hit at the right moment is to keep the issue alive and circulating through the court system.

At the same time, politicians, gazing on Pledge popularity polls among voters, are already armed with legislative weapons to protect the Pledge as it stands. While no specific Constitutional amendment action has gotten very far, a congressional bill dubbed the Pledge Protection Act of 2005 sought to limit the powers of federal courts on any issue dealing with changes to the Pledge. This bill, as written, would prohibit federal courts, other than territorial courts, the Superior Court of the District of Columbia, and the District of Columbia Court of Appeals, from hearing or deciding cases questioning interpretation or Constitutional validity of the Pledge. In addition, it prohibits the Supreme Court from accepting appeals from any court on the issue. The legality of this act itself was questioned since Article 3 of the Constitution specifically ensures that federal judges are insulated from the political pressures governing members of the other two branches of government—legislative and executive. Ignoring that, however, the bill passed in Congress by a vote of 260 to 167. It was sent on to the Senate where it withered away in the Senate’s Judicial Committee without ever being brought to a vote.

Although this particular bill is effectively dead, a spokesperson for one of the sponsors of the bill said, “It accomplished what we hoped for. The courts have not tried anything since.”

If they do, there is plenty of precedent to suggest that politicians will react to public support of the Pledge by finding new ways of securing the oath’s place as one of the touchstones of American political life. But the issue is certain to be litigated again and perhaps eventually to find its way once more to the Supreme Court. If so, whichever way the high tribunal decides, Americans will go on arguing about it long afterward.

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