May 2004 Church & State | Featured

The profile of Michael A. Newdow that ran in the Los Angeles Times March 23 could not be called flattering.

Newdow, a Sacramento emergency-room physician, was slated the next day to argue a key church-state case before the U.S. Supreme Court. He would assert that public schools should not be permitted to ask students to recite the Pledge of Allegiance because it contains the words "under God." The story seemed skeptical of his ability to pull it off.

Noting that Newdow has a law degree but does not practice as a lawyer, the article portrayed him as a quirky loose cannon, likely to offend the justices with bizarre arguments and unprofessional behavior. At the staid, marble-columned high court, where a premium is placed on decorum and protocol, Newdow, the article implied, was sure to blow it.

The headline called Newdow "a volatile atheist," and the text referred to him as a "neophyte" as well as "combative and unpredictable with a tendency to vent obsessively about what he perceives as unjust." It noted Newdow's refusal to turn the argument over to professional attorneys "who have fewer quirks and know how to argue in court."

The following morning, Newdow demolished his critics' portrayal as well as the caricature of himself as a loose-lipped eccentric that had become an article of faith in some media quarters. Standing before the justices for a half hour, he was calm and collected. Never rattled by the often sharp questioning from some of the justices, Newdow did not stumble or hesitate. He even achieved a feat rarely seen at the high court: an eloquent summation of his argument that concluded exactly when his time expired.

Even Religious Right attorneys, who vociferously oppose Newdow's attempt to exorcise "under God" from the Pledge, were impressed.

"I'd give him an 'A,'" Jay Sekulow, chief litigator for TV preacher Pat Robertson's American Center for Law and Justice, told the Associated Press. "He remained undeterred during intense questioning."

Ken Starr, former Whitewater prosecutor and a Religious Right warhorse, concurred.

"I think he surprised a lot of people," Starr said. "He was superb."

Notices in the press the next day were uniformly favorable. Linda Greenhouse, a veteran New York Times Supreme Court reporter, went so far as to write, "[N]o one who managed to get a seat in the courtroom is likely to ever forget his spell-binding performance."

Everyone agrees that Newdow did a great job but that may not be enough. He was subjected to tough questioning during the argument, some of it coming from justices normally supportive of church-state separation.

Newdow is seeking to bar public schools from sponsoring recitation of the Pledge as it is currently written. He brought the case on behalf of his daughter, now a fourth-grader.

Few expected the dispute to get this far. Throughout, Newdow has represented himself. He lost at the first level of federal court but won a surprising victory on June 26, 2002, at the 9th U.S. Circuit Court of Appeals.

Officials at the Elk Grove School District in California, where Newdow's daughter is a student, appealed to the Supreme Court. On Oct. 14, 2003, the high court announced it would hear the case.

The decision was not a surprise, because the 9th Circuit ruling had sparked a firestorm of controversy. Religious Right groups were outraged, and political leaders in both parties denounced the ruling. The Bush administration intervened in the case and assigned attorneys from the Justice Department to defend the Pledge's religious language. Polls showed that 90 percent of the American people said they favor keeping "under God."

Members of the Supreme Court are supposed to be insulated from political controversies, but some justices might be worried over the implications of upholding such an unpopular ruling. During the argument, it seemed as if some justices who normally support church-state separation were looking for a way to give "under God" a pass.

Justice Stephen G. Breyer asked Newdow if it's possible that including "under God" in the Pledge is such a broad and generic use of religion by the government that it is meant to include even non-believers.

Newdow had a quick reply.

"I don't think that I can include 'under God' to mean 'no God,' which is exactly what I think," he said. "I deny the existence of God, and for someone to tell me that 'under God' should mean some broad thing that even encompasses my religious beliefs sounds a little, you know, it seems like the government is imposing what it wants me to think of in terms of religion, which it may not do."

Breyer is normally sympathetic toward church-state separation, but the question seemed to indicate that the justice might be leaning toward endorsing the view that "under God" in the Pledge is an acceptable form of "ceremonial deism" a reference to God that is permissible because it is generic.

Justice David H. Souter, one of the court's strongest defenders of church-state separation, also seemed to be leaning toward the "ceremonial deism" argument.

"I think the argument is that simply the way we live and think and work in schools and in civic society in which the Pledge is made, that the that whatever is distinctively religious as an affirmation is simply lost," he said.

Reciting the Pledge, Souter opined, may be merely a way of "solemnizing" an occasion.

Newdow rejected these assertions, arguing that school-sponsored recitation of the Pledge is equivalent to prayer in school. He also rejected claims that the ritual is permissible because it is voluntary. Even if it's not required, Newdow asserted, the practice subjects children to coercion.

Newdow based this portion of his argument on a 1992 opinion written by Justice Anthony M. Kennedy in Lee v. Weisman, which struck down school-sponsored graduation prayers. Kennedy was the swing vote in the Lee case, but this time he appeared to be skeptical of Newdow's contentions.

Kennedy opined that the activity in Lee was "100 percent prayer" and called the Pledge "only 5 percent prayer."

Some of the more conservative justices also questioned Newdow aggressively. Chief Justice William H. Rehn­quist took issue with his claim that recitation of the Pledge in schools is divisive. Rehnquist, aware that there were no objections when the Senate voted in 1954 to insert "under God" into the Pledge, asked Newdow if he knew about that vote total.

When Newdow admitted the vote was unanimous, Rehnquist shot back, "Well, that doesn't sound divisive."

But Newdow turned the tables, responding, "That's only because no atheist can get elected to public office. The studies show that 4 to 8 percent of the population cannot get elected."

His rejoinder sparked laughter and even applause in the court chambers. Laughter is not uncommon during oral arguments, but applause is strictly forbidden. A clearly agitated Rehnquist banged his gavel and threatened to clear the courtroom if it happened again.

Although Rehnquist's questioning was sharp, it was not sarcastic. The court's master of sarcasm, Justice Antonin Scalia, was absent. Scalia, the most ardent foe of church-state separation on the high court, recused himself from the deliberations after he publicly commented on the matter during a "religious freedom" rally sponsored by the Knights of Columbus in Fredericksburg, Va., in January of 2003.

(Scalia's absence raises the possibility of a 4-4 tie. If that were to happen, the decision would apply to the nine Western states in the 9th Circuit but would not set a nationwide precedent.)

Not all of the questioning Newdow faced was aggressive. Justice John Paul Stevens, a strong supporter of church-state separation, threw Newdow something of a softball, asking him to explain if "under God" in the Pledge still has meaning for people today or if no one cares about it anymore.

Newdow responded by recalling the day the 9th Circuit Court ruled in his favor.

"I would merely note that 99 out of 100 senators stopped what they were doing and went out on the front steps of the Capitol to say that they want 'under God' there," he said. "The president of the United States, in a press conference with Vladimir Putin, decided the first thing he's going to talk about was this decision. It was on the front page of every major newspaper. This is supposed to be one of the major cases of this court's term. I think clearly it has enormous significance to the American public, and that's why this is important. That's why this case is so critical."

Two attorneys argued the case on behalf of retaining "under God" in the Pledge Terence J. Cassidy, a lawyer for the Elk Grove School District, and Theodore B. Olson, solicitor general of the United States. Cassidy and Olson split the half hour allotted to them, each arguing for 15 minutes.

Cassidy was forced to spend most of his time addressing a technical legal question whether Newdow even has a right to bring his case. The school district asserts that Newdow, as a non-custodial parent, has no right to challenge the Pledge on his daughter's behalf. They point out that the child does not object to reciting the Pledge and that she and her mother, Sandra Banning (whom Newdow never married), are Christians. If the justices decide Newdow does not have "standing" to sue, the case will be tossed out without the court addressing the question of whether public schools can sponsor recitation of the Pledge.

Newdow was also asked several questions about the standing issue. He argued that he has a great interest in what happens to his daughter in school, since it affects his relationship with her.

"I am an atheist," Newdow said. "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.... That is an actual, concrete, discrete, particularized, individualized harm to me."

School district lawyer Cassidy dealt with the church-state issue head-on once. During a brief rebuttal, Stevens asked him to respond to an argument raised in a friend-of-the-court brief filed by several members of the clergy. The religious leaders asserted that if "under God" isn't meant to be taken seriously as a religious statement, it forces children to take God's name in vain every day. (Three members of the AU Board of Trustees were among the brief's signers Ronald B. Flowers, Paul D. Simmons and Bruce Prescott.)

"Would you comment on that argument?" asked Stevens.

"I would disagree," stated Cassidy, "because we feel that the use of the term, 'one nation under God,' reflects a political philosophy...and that is the philosophy that's now more enhanced, more reflected, in the 1954 act."

During his time at the podium, Solicitor General Olson was able to get to the heart of the matter: whether including "under God" in the Pledge makes its recitation unconstitutional in public schools.

"Fourteen justices of this court since the Pledge of Allegiance was amended have indicated that the Pledge of Allegiance is not a religious exercise," Olson, the Bush administration representative, told the justices. "It is something different of a ceremonial nature."

Continued Olson, "The [Constitution] does not prohibit civic and ceremonial acknowledgements of the indisputable historical fact of the religious heritage 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, because although the king was infallible, they believe 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."

Asked by Justice Ruth Bader Ginsburg if he would support a Pledge that says America is "under Jesus," Olson balked.

"That is completely different," he said.

Olson asserted that the framers of the Constitution used general references to a deity, such as "the Creator" but did not refer to Jesus Christ in founding documents. He pointed out that Thomas Jefferson, in his act for establishing religious freedom in Virginia, insisted that it apply to Christians and non-Christians alike.

After the argument, Newdow toting a large maroon backpack in lieu of a briefcase emerged from the court, strolled down the marble steps to the portico and took questions from the media. After he spoke, a number of advocates and opponents of church-state separation also fielded questions. Among the former was Americans United Executive Direc­tor Barry W. Lynn.

AU filed a friend-of-the-court brief supporting church-state separation, and Lynn explained to the reporters why no American schoolchild should be forced to affirm a belief in God as a condition of expressing patriotism. (Later that evening, Lynn debated the issue on two national cable programs CNN's "Lou Dobbs Tonight" and CNBC's "Capital Report.")

Not far away on a public sidewalk in front of the court, fundamentalist Christians sang hymns and denounced Newdow's efforts. A few feet from them, a group of atheists sponsored their own rally, some hoisting signs reading "Keep Church and State Separate" and "Not one citizen is hurt when government is neutral!" Members of the two factions basked in the warmth of a cloudless early spring day and seemed to enjoy engaging in spirited debates, under the careful watch of the Supreme Court Police.

A decision in the case, Elk Grove Unified School District v. Newdow, is expected by late June.

AU's Lynn and Legal Director Ayesha N. Khan attended the argument, sitting in a section reserved for members of the Supreme Court bar.

"I think the justices clearly understand the importance of this case," said Lynn in a press statement issued after the deliberations. "Tough questions were asked of both sides. This case is a test of America's commitment to true religious freedom. When Congress added 'under God' to the Pledge, a patriotic ritual was turned into a religious oath that many children cannot in good conscience recite."

Lynn noted that AU attorneys offered legal advice to Newdow as he prepared his briefs and helped line up some of the other religious and public policy groups that filed friend-of-the-court briefs in support of church-state separation. (Newdow also worked with several constitutional law professors, who helped him get ready for the oral argument by holding practice sessions known as moot courts.)

Concluded Lynn, "The government should never try to impose religion on schoolchildren. Parents should decide what religious training -- if any -- that their children receive."

A few days after the argument, Newdow told Church & State that he believes his case is a strong one, but he's not making any predictions about the outcome. And, despite the glowing reviews of his performance, he thinks he could have done better.

"Everyone seems to agree that there's no way to gauge the justices' positions from their questions," Newdow said. "I think it went well, although I've been kicking myself a bunch for not giving better responses to a few of their queries."