Atheist Calls Pledge Unconstitutional

A California atheist told the Supreme Court Wednesday that the words "under God" in the Pledge of Allegiance are unconstitutional and offensive to people who don't believe there is a God.

Michael Newdow, who challenged the Pledge of Allegiance on behalf of his daughter, said the court has no choice but to keep it out of public schools.

"It's indoctrinating children," he said. "The government is supposed to stay out of religion."

But some justices said they were not sure if the words were intended to unite the country, or express religion.

Chief Justice William H. Rehnquist noted that Congress unanimously added the words "under God" in the pledge in 1954.

Some in the audience erupted in applause in the courtroom, and were threatened with expulsion by the chief justice.

The subject of Newdow's right to bring the lawsuit had dominated the beginning of arguments in the landmark case to decide if the classroom salute in public schools violates the Constitution's ban on government-established religion.

Terence Cassidy, attorney for a suburban Sacramento school district where Newdow's 9-year-old daughter attends classes, noted to justices that the girl's mother opposed the lawsuit. "The ultimate decision-making authority is with the mother," he said.

The mother, Sandra Banning, is a born-again Christian and supporter of the pledge. "I object to his inclusion of our daughter" in the case, she said earlier Wednesday on ABC's "Good Morning America" show. She said she worries that her daughter will be "the child who is remembered as the little girl who changed the Pledge of Allegiance."

Newdow had sued the school and won, setting up the landmark appeal before a court that has repeatedly barred school-sponsored prayer from classrooms, playing fields and school ceremonies. But justices could dodge the issue altogether if they decide that Newdow needed the mother's consent, because she has primary custody.

Rehnquist said that the issues raised in the case "certainly have nothing to do with domestic relations." And, Justice David H. Souter said that Newdow could argue that his interest in his child "is enough to give him personal standing."

Solicitor General Theodore Olson, the Bush administration lawyer arguing for the school district, said that the mother was concerned that her daughter had been "thrust into the vortex of this constitutional case."

He said the Pledge of Allegiance should be upheld as a "ceremonial, patriotic exercise."

A new poll shows that Americans overwhelmingly support the reference to God. Almost nine in 10 people said the reference to God belongs in the pledge despite constitutional questions about the separation of church and state, according to an Associated Press poll.

Dozens of people camped outside the court on a cold night, bundled in layers and blankets, to be among the first in line to hear the historic case. "I just wanted to have a story to tell my grandkids," said Aron Wolgel, a junior from American University.

More than 100 supporters of the pledge began the day reciting the pledge and emphasizing the words "under God." Some supporters of the California father, outnumbered about four-to-one, shouted over the speeches of pledge proponents. They carried signs with slogans like "Democracy Not Theocracy."

God was not part of the original pledge written in 1892. Congress inserted it in 1954, after lobbying by religious leaders during the Cold War. Since then, it has become a familiar part of life for a generation of students.

Newdow compared the controversy to the issue of segregation in schools, which the Supreme Court took up 50 years ago in Brown v. Board of Education.

"Aren't we a better nation because we got rid of that stuff?" Newdow, a 50-year-old lawyer and doctor arguing his own case at the court, asked before the argument.

The AP poll, conducted by Ipsos-Public Affairs, found college graduates were more likely than those who did not have a college degree to say the phrase "under God" should be removed. Democrats and independents were more likely than Republicans to think the phrase should be taken out.

Justices could dodge the issue altogether. They have been urged to throw out the case, without a ruling on the constitutional issue, because of questions about whether Newdow had custody when he filed the suit and needed the mother's consent.

Absent from the case is one of the court's most conservative members, Justice Antonin Scalia (news - web sites), who bowed out after he criticized the ruling in Newdow's favor during a religious rally last year. Newdow had requested his recusal.

FRom the American Spectator

Harold Johnson
March 23, 2004

Father Doesn’t Know Best

SACRAMENTO -- Tomorrow the United States Supreme Court hears a lawsuit that features two parents embroiled in a cross between "Family Feud" and "Kramer v. Kramer." It's the Pledge of Allegiance case, Elk Grove Unified School District v. Newdow. The media coverage is playing up the marquee controversy in the litigation: Whether the words "under God" must be removed from the Pledge, as the Ninth Circuit Court of Appeals ordered two years ago. But a family-law dispute also looms large: Can a father without legal custody sue to "protect" his daughter from the Pledge -- when the mother is adamant that the girl should continue reciting the familiar words in her public school?

The Supreme Court asked for both questions to be briefed and it must address the father's "standing," or legal authority to bring the lawsuit, first. Without even getting to the issue of the Pledge’s constitutionality, the Supreme Court can and should put a halt to Newdow’s case right there.

Michael Newdow is the father, a Sacramento emergency room doctor who has made himself the nation's most famous atheist. Newdow is currently juggling three legal actions to eject God from every corner of the Public Square. One would get rid of Congress's chaplains. Another takes aim at the Rev. Franklin Graham's prayer to Jesus at President Bush's inauguration. The third targets the Pledge.

Newdow's daughter was his prop for getting his anti-Pledge jihad before a judge. Now nine, she attends school in the Elk Grove district south of Sacramento, where teachers lead the Pledge every morning for students who wish to take part. Four years ago, Newdow filed a federal lawsuit objecting to this practice, both on his daughter's behalf and in his own name as her father. In 2002, the Ninth Circuit confirmed its reputation for judicial joyriding by siding with Newdow against the school district. A three-judge panel ruled, 2-1, that saying the Pledge, with "under God," in public school violates the First Amendment by getting government into the religion business.

No one objected more strenuously to this than Sandra Banning of Elk Grove, the mother of Newdow’s daughter. During much of the life of the lawsuit, Banning had sole legal custody of the girl. According to the California Family Code, "sole legal custody" means "the right and the responsibility to make the decisions relating to the health, education, and welfare of a child." Even now, when Newdow and Banning share custody, Banning is the final decision-maker about the girl's schooling and welfare.

Banning "has always believed -- and has taught her child -- that the Pledge [with "under God" intact] embodies an important expression of American ideals," according to a brief that she has submitted to the Supreme Court. Authored by former Solicitor General Kenneth Starr, among others, the brief calls the Pledge "an integral part of the fabric of our society" and "part of the American tradition of inclusiveness -- one that reflects the democratic beliefs of a diverse society."

As for Newdow's crusade, Banning is "profoundly concerned" that his lawsuit would "force all public schools to banish any statement that might be construed as a reference to religious values, no matter how benign, latitudinarian, or important that expression may be to the inculcation of civic virtue." The Banning brief urges that Newdow "not be permitted to use [their daughter] as a surrogate for his own private agenda of imposing certain beliefs on the Nation's schoolchildren."

IF NEWDOW DID NOT HAVE ultimate say in his daughter's education, how did the appellate court rationalize letting his lawsuit go forward? Through a selective reading of precedent that rivals the Ninth Circuit's censorship of the Pledge in its audacity. Can a noncustodial parent sue to calibrate how much religion his child may be exposed to, at school or anywhere else? The answer lies with state-level family and custody law. But instead of applying California case law in a straightforward way, the Ninth Circuit did a cut and paste job to get the desired result.

The justices leaned heavily on a 1980 California Court of Appeals ruling, Murga v. Peterson, which held that a noncustodial parent may be involved in the child's religious activities; they conveniently passed over Murga's statement that "the custodial parent undoubtedly has the right to make ultimate decisions concerning the child's religious upbringing." (Italics added.)

In response to this twisting of precedent, former California Supreme Court Justice Joseph Grodin has called on the Supreme Court to kick Newdow back to the Ninth Circuit. He wants the appellate court to be ordered to ask the California Supreme Court for a ruling on Newdow's standing to sue -- something the Ninth Circuit should have done to begin with, out of deference to the state judiciary on matters of state law.

The Ninth Circuit’s attempt to find standing for Newdow -- a noncustodial parent at the time he was trying to use his status as a father to advance his atheism -- carries broad and disturbing implications. Drafting and interpreting family law policy has traditionally been a domain for the states. By imposing its own arbitrary imprint on California law relating to child custody, making itself the Oracle of a parent's rights, the court points in an ominous direction -- towards "federalizing" family law, arrogating yet more power to unelected federal judges.

If the Supreme Court recognizes the danger in taking sensitive questions of domestic relations away from state legislators and state jurists, it will give the California precedents a less "creative" reading than the Ninth Circuit insisted upon -- and toss out the Newdow case for want of standing. Alternatively, it could follow Justice Grodin's suggestion and ask California's high court for an opinion on Dr. Newdow's right to sue. Either of these options might be portrayed as "avoiding" issues of church and state, but in fact they're the only paths open if the Court wants to affirm allegiance to principles of federalism and local control.

Harold Johnson is an attorney in Sacramento with the Pacific Legal Foundation, which has submitted a friend-of-the-court brief supporting the Elk Grove Unified School District.

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