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Atheist Presents Case for Taking God From Pledge
March 25, 2004
By LINDA GREENHOUSE
WASHINGTON, March 24 - Michael A. Newdow stood before the
justices of the Supreme Court on Wednesday, pointed to one
of the courtroom's two American flags and declared: "I am
an atheist. I don't believe in God."
With passion and precision, he then proceeded to argue his
own case for why the daily recitation of the Pledge of
Allegiance in his daughter's public school classroom
violates the Constitution as long as the pledge contains
the words "under God."
Dr. Newdow, a nonpracticing lawyer who makes his living as
an emergency room doctor, may not win his case. In fact,
justices across the ideological spectrum appeared to be
searching for reasons he should lose, either on
jurisdictional grounds or on the merits. But no one who
managed to get a seat in the courtroom is likely ever to
forget his spell-binding performance.
That includes the justices, whom Dr. Newdow engaged in
repartee that, while never disrespectful, bore a closer
resemblance to dinner-table one-upmanship than to formal
courtroom discourse. For example, when Dr. Newdow described
"under God" as a divisive addition to the pledge, Chief
Justice William H. Rehnquist asked him what the vote in
Congress had been 50 years ago when the phrase was
inserted.
The vote was unanimous, Dr. Newdow said.
"Well, that doesn't sound divisive," the chief justice
observed.
Dr. Newdow shot back, "That's only because no atheist can
get elected to public office."
The courtroom audience broke into applause, an exceedingly
rare event that left the chief justice temporarily
nonplussed. He appeared to collect himself for a moment,
and then sternly warned the audience that the courtroom
would be cleared "if there's any more clapping."
Earlier, Dr. Newdow responded to Justice Stephen G.
Breyer's suggestion that "under God" had acquired such a
broad meaning and "civic context" that "it's meant to
include virtually everybody, and the few whom it doesn't
include don't have to take the pledge."
"I don't think that I can include `under God' to mean `no
God,' " Dr. Newdow replied. "I deny the existence of God."
He added, "Government needs to stay out of this business
altogether."
The current Pledge of Allegiance was defended by Solicitor
General Theodore B. Olson and by Terence J. Cassidy, the
lawyer for the Elk Grove school district in California
where Dr. Newdow's daughter attends elementary school.
Both lawyers were appealing a decision won by Dr. Newdow in
the United States Court of Appeals for the Ninth Circuit,
in San Francisco. That court ruled last year that the
addition of "under God" turned the pledge into a
"profession of religious belief" and made it
constitutionally unsuitable for daily recitation in the
public schools. Congress added the phrase at the height of
the cold war in an effort to distinguish the American
system from "Godless Communism."
One justice, Antonin Scalia, was sharply critical of the
appeals court's ruling in a speech he gave before the case
reached the Supreme Court. As a result, Dr. Newdow asked
Justice Scalia to recuse himself, and the justice complied,
without comment, when the court accepted the case in
October. His absence raises the possibility of a 4-to-4
tie, which would automatically affirm the Ninth Circuit's
ruling without setting a binding precedent elsewhere.
Solicitor General Olson told the justices that the appeals
court misunderstood the pledge. The phrase "under God" did
not place the pledge in the category of religious
expressions that the Supreme Court has found
unconstitutional, he said, for example "state-sponsored
prayers, religious rituals or ceremonies, or the
requirement of teaching or not teaching a religious
doctrine."
Rather, Mr. Olson said, "under God" was one of various
"civic and ceremonial acknowledgments of the indisputable
historical fact that caused the framers of our Constitution
and the signers of the Declaration of Independence to say
that they had the right to revolt and start a new country."
He said the framers believed "that God gave them the right
to declare their independence when the king has not been
living up to the unalienable principles given to them by
God."
That description of the pledge appeared to gain little
traction as the argument proceeded. "I do assume that if
you read the pledge carefully, the reference to `under God'
means something more than a mere description of how
somebody else once thought," Justice David H. Souter said
to Dr. Newdow moments later.
Justice Souter's question for Dr. Newdow was whether, even
assuming that schoolchildren were being asked "as a
technical matter" to make a personal religious affirmation,
the recitation had become in practice "so tepid, so
diluted, so far, let's say, from a compulsory prayer that
in fact it should be, in effect, beneath the constitutional
radar." Was it the case, Justice Souter asked, that by "the
way we live and think and work in schools and in civic
society in which the pledge is made, that whatever is
distinctively religious as an affirmation is simply lost?"
Dr. Newdow replied: "That is a view that you may choose to
take and the majority of Americans may choose to take. But
it's not the view I take, and 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.' "
Before the justices can decide the merits of the case, Elk
Grove Unified School District v. Newdow, No. 02-1624, they
must resolve doubts about whether Dr. Newdow had standing
to bring his lawsuit, either on his own behalf or on behalf
of his daughter, who is now 9 years old. A court does not
have jurisdiction in the absence of a plaintiff with
standing.
Dr. Newdow was never married to the child's mother, Sandra
Banning, who has custody and has told the court in a brief
filed by Kenneth W. Starr, the former independent counsel,
that she is giving her daughter a religious upbringing and
wants her to say the pledge with "under God." The justices
spent about half of the one-hour argument posing questions
about standing and sparring with Dr. Newdow on the subject.
It remained unclear whether Dr. Newdow persuaded them, but
he was obviously prepared for the argument. He told the
justices, "I am saying I as her father have a right to know
that when she goes into the public schools she's not going
to be told every morning to stand up, put her hand over her
heart, and say your father is wrong, which is what she's
told every morning."
"Well, she does have a right not to participate," Justice
Sandra Day O'Connor observed.
In 1943, 11 years before Congress added "under God," the
court ruled that no one could be compelled to say the
Pledge of Allegiance. That case was brought by Jehovah's
Witnesses, whose religion forbids saluting the flag.
Dr. Newdow said opting out was a "huge imposition to put on
a small child."
He continued: "Government is doing this to my child.
They're putting her in a milieu where she says, `Hey, the
government is saying that there is a God and my dad says
no,' and that's an injury to me."
Dr. Newdow, 50, often spoke very rapidly but never appeared
to lose his footing during the 30 minutes the court gave
him. 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."
http://www.nytimes.com/2004/03/25/politics/25SCOT.html?ex=1081235592&ei=1&en=37ae2253274b2fbc
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