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Jewish World Review March 25, 2004 / 3 Nissan, 5764 The Pledge finally gets its day in (High) Court By William Neikirk
http://www.jewishworldreview.com |
WASHINGTON — (KRT) A California atheist encountered skepticism from the Supreme Court on Wednesday when he made an impassioned argument that the words "under G-d" render the Pledge of Allegiance unconstitutional.
Michael Newdow, who challenged the pledge in a suit he filed on behalf of his daughter, engaged in an energetic give-and-take with the eight justices hearing the case, arguing that inclusion of "under G-d" in the pledge amounts to a government sponsorship of religion.
The high-profile case, an appeal of a 9th U.S. Circuit Court of Appeals decision striking down the pledge, proved to be as much of a spectacle outside the court as inside. On the steps of the court, religious groups held hands and sang "G-d Bless America" while atheist groups protested that the pledge violates their freedom.
Inside, several justices questioned whether the pledge has much religious significance or whether it is more of a civic, patriotic ritual.
Justice David Souter agreed with Newdow that the pledge appeared to be an affirmation of G-d, but he asked whether its regular recitation as part of a civic exercise "is so tepid, so diluted, so far from a compulsory prayer that it should in effect be beneath the constitutional radar."
Newdow, who held his own under constant questioning as he argued the case himself before the high court, took issue. "To say this is not religious is somewhat bizarre," he said. "When I see the flag and think of the Pledge of Allegiance, it's like I'm getting slapped in the face every time."
Justices also raised questions about whether Newdow had the legal standing to bring his case, since he has lost custody of his daughter to her mother, a born-again Christian who said she had no objection to the pledge. But he said that as a father, he still maintained a legal right to challenge his child's recitation of the pledge in the Sacramento-area Elk Grove school district.
"I'm an atheist," he said. "I don't believe in G-d. My daughter is asked to stand up and say her father is wrong."
Theodore Olson, the U.S. solicitor general arguing the government's case, said Newdow "had no right to bring this case in his daughter's name" because a California domestic relations court had awarded the mother custody.
The girl's mother, Sandra Banning, was in the courtroom, but she and Newdow agreed that their daughter should not attend. Afterward, Banning told reporters the pledge "is an expression of our patriotic experience."
The court's decision, expected before it adjourns this summer, will be closely watched for its attitude on such religious expressions and for any political impact it could have in an election year. Or the court, instead of ruling on the merits of the pledge, could decide that Newdow has no standing to bring the case.
There were some mild fireworks during Wednesday's oral argument. After Newdow's criticism of the pledge, Chief Justice William Rehnquist asked Newdow how much support adding the words "under G-d" to the pledge had in Congress in 1954, when they were officially included.
When Newdow said the vote was unanimous, the chief justice responded, "That doesn't sound divisive." Newdow shot back with a quick rejoinder, "That's only because no atheist can get elected to public office," a remark that prompted laughter and applause from his supporters in the courtroom.
"The courtroom will be cleared if there is any more clapping," the chief justice said sternly.
Justices also peppered Newdow with questions about whether he had objections to "In G-d We Trust" on U.S. money, the singing of "G-d Bless America" in public schools and even the court's own opening invocation, "G-d save the United States and this honorable court."
Newdow, an emergency-room doctor with a law degree, generally said such expressions are not the same as the pledge, which he likened more to a school prayer. He said later that if "G-d Bless America" were to be sung every day as part of a requirement in school, he would object, but not if it were sung periodically.
Justice Sandra Day O'Connor, among other court members, said that Newdow's daughter, now 9 years old, "does have a right not to participate" in the pledge, though Newdow said the pledge nonetheless amounts to a form of indoctrination.
"The government is supposed to stay out of religion," he said.
No justice appeared to express much sympathy with Newdow's position. Justice Anton Scalia recused himself from the case after making a speech that appeared to side with supporters of the pledge.
Justice John Paul Stevens asked if the pledge had the same meaning today as it did when it was approved a half-century ago, when the United States was locked in a Cold War against what many Americans called "Godless" communism.
Olson said the pledge is as important today as it was during the 1950s, but as an expression of America's political heritage and history, not as a religious invocation.
Later, responding to the same question from Stevens, Newdow noted that President Bush opposed the 9th Circuit's decision when asked about it during a meeting with Russian President Vladimir Putin. "Clearly, it has enormous importance to Americans," he said.
But the school district's attorney, Terence Cassidy, said the district's policy is that the pledge is a secular, patriotic expression, not religious in nature. "It has to do with national unity and citizenship," he said.
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William Neikirk is a reporter for the Chicago Tribune. Comment by clicking here.
© 2004 Chicago Tribune. Distributed by Knight Ridder/Tribune Information Services
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