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Supremes Sans Scalia Hear Pledge of Allegiance Case 3/25/2004 "God save the United States and this Honorable Court" precedes atheist's argument News and Commentary Michael Newdow, a doctor turned lawyer and avowed atheist, heard the marshal of the U.S. Supreme Court express a prayer that has opened each day's proceedings of the Court since its beginning. Newdow was in the Court Wednesday to argue that the words, "under God," make the Pledge of Allegiance unconstitutional. Newdow believes that any "government involvement" with religion violates the Constitution. A media outlet referred to the "Pledge of Allegiance being under fire at the Supreme Court" as a lead to its coverage of the case. Newdow's presentation was certainly fiery and he argued his position quite well. The problem for him is that the Court didn't warm up to his argument. Newdow's case began in 2002, when he sued in federal court claiming that the federal statute that added "under God" to the Pledge in 1954 is unconstitutional. He sought to prevent the California school district his daughter attends from having students voluntarily recite the Pledge of Allegiance at the beginning of each school day. The district court dismissed his case for lack of standing but a three-judge panel of U.S. Court of Appeals for the Ninth Orbit—oops--make that Circuit—agreed with Newdow by a 2-1 vote. On February 28, 2003, a full panel of the circuit by a 15-9 vote refused to rehear the case. In the opinion and order, it withdrew the ruling on the federal statute but allowed to stand the ruling that the school district policy "impermissibly coerces a religious act" because of the phrase "under God." The Court granted the school district's petition to review the 9th Circuit's ruling. The Court's opinion in Elk Grove Unified School District v. Newdow will answer two questions: The standing issue involves whether Newdow has suffered a "sufficient injury" to bring the case at all. The Court has held that the injury must be more than the "psychological consequence presumably produced by observation of conduct with which one disagrees." In layman's terms, not every gripe, beef, or slight gives you a right to make a federal case out of it. Newdow claims that the school district policy has wrongly infringed upon his right to raise his daughter according to his own "religious beliefs" without state interference. Standing is a big issue for Newdow to meet because he's never been married to Sandra Banning, his daughter's mother, and Banning has sole custody of the girl, which gives her the final say about the girl's upbringing. Furthermore, the California Education Code requires schools to recognize valid court orders. The 9th Circuit glossed over the standing issue but the Supremes are taking a hard look at it. Banning intervened when the case was in the 9th Circuit because her daughter didn't want people to think that she is opposed to the Pledge. Her daughter wanted them to know that she is a Christian and not only says the Pledge, sometimes she leads her class in saying it. Banning also filed an amicus brief with the Supreme Court arguing that she and her daughter have no objection to the school policy. Ken Starr, former Solicitor General of the United States and former judge on the Court of Appeals for the D.C. Circuit, represents her pro bono on that brief. Newdow's Establishment Clause challenge to "under God" in the Pledge goes like this: For school children to recite the Pledge with "under God" means the government takes "one side in the quintessential religious question 'Does God exist?'" Every time his daughter says the Pledge, Newdow claims, government is telling her that her father's beliefs are wrong. That position seems quite inconsistent with the fact that Newdow tried to have his daughter in the Court yesterday where she would have heard the marshal's prayer. The California judge presiding over the custody issues wisely denied his request. But even if it's true that government has taken sides on whether God exists, what's the point? Dr. Newdow, have you checked your money lately? Have you toured the government buildings and memorials here in Washington, D.C., inscribed with countless references to God? Have you read the founding documents, presidential proclamations, etc., etc? Furthermore, government acknowledging God is light years from government establishing a national religion or endorsing religion, or coercing someone to engage in religious expression. Several justices made these points to Newdow repeatedly in yesterday's arguments. Let's diffuse the emotion surrounding the case and consider the issue as if Congress had inserted in the Pledge, "one nation where they eat a lot of peanut butter." Would reciting that mean I like peanut butter, eat peanut butter, that I want anyone to like or eat peanut butter, that I have to eat government-mandated quantities of peanut butter, or that government should spread peanut butter all over the country by subsidizing peanut butter in public school lunch programs? It's a pledge to a nation, not to peanut butter. It would be a statement about what a lot of Americans eat, not a government-coerced diet. The point doesn't change just because the words mention God. People, including school kids, choose or refuse to say them regardless of their religious beliefs. The Supreme Court settled the coercion issue long ago. In West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), the Court held that the government may not require anyone to say the Pledge of Allegiance. And who would want to make anyone do so? But the little Jehovah Witness girl who refused to say the Pledge in Barnette didn't presume to trample on the rights of those who wanted to say it, which is what Newdow is asking the Court to do in his case. In essence, Newdow uses the Bill of Rights as a shield to "protect" his "religious beliefs" from the majority and misuses it as a sword to deny the rights of the majority. It amounts to a "Heckler's Veto" to stop speech he disagrees with, something the Court has rightly refused to permit. The phrase, "under God," represents a historical fact about what the Founders believed and/or what the majority of the people still believe, rather than coerced religious expression. It expresses a political philosophy about limited government and inalienable rights that are derived from God, which is why Congress added "under God" to the Pledge at the height of the Cold War. The words drew a clear line of demarcation between the United States and the Soviet Union resting precipitously on a political philosophy grounded in atheism. And didn't the fall of the "Evil Empire" bear that out? Every nation is "under God" and some are wise enough to acknowledge it. The Pledge is not a prayer; it's not even a pledge to God. It's a pledge to a Nation where the Founders believed and the majority still believe that God has something to do with its beginning and ending. Newdow told the Court that government involvement with religion makes non-believers outsiders. How ironic for an "outsider" to be arguing that in front of the highest court in the land. Newdow hasn't been a lawyer long enough to be admitted to the Supreme Court Bar. But the Court granted him an exemption to do so and brought the outsider as inside as it gets. What this government does do is protect and respect the right of Dr. Newdow and anyone else to refuse to recite the Pledge of Allegiance. What government should never do is give Newdow or anyone else a "right" to silence others who want to express constitutionally protected speech. Justice Antonin Scalia recused himself from participating in the case after Newdow requested him to do so. Scalia had made public comment criticizing the 9th Circuit's ruling in the case. One could only imagine the questions Scalia might have asked Dr. Newdow and we can only mourn the loss of the rhetorical resonations a Scalia opinion would have brought forth. There had been much speculation about the likelihood of a 4-4 vote absent Scalia, which would leave the ruling by the 9th Circuit in place. I've never agreed with the theory and it was more than obvious yesterday that a tie is not in the works. If the Court finds that Newdow has standing, which is a big if, he will lose on the merits by 7-1 and possibly 8-0. Besides the 14 times in which various Court justices have commented on the constitutionality of the Pledge in past cases in what is called dicta, there is also a ruling by the 7th Circuit upholding the Pledge. The Court allowed that ruling to stand in Sherman v. Community Consolidated School District 21, 980 F2d 437 (7TH Cir. 1992), when it denied cert., 508 U.S. 950 (1993). Judge Starr introduced me to Sandy Banning at the Court just after oral argument concluded. I asked this gracious lady for her comments. She said that she was "glad to have gone through the process" and wants the Court to rule on the merits because she "doesn't want the Nation to have to go through this again." I told her that was very unselfish of her because in order to do so the Court will have to find that Newdow has standing and that doesn't respect her custody order from the California court. She understands but for her there is a bigger issue affecting all of us. I also shook hands with Dr. Newdow and said to him, "I totally disagree with your position but you did an admirable job of arguing your case." He thanked me and said, "But obviously it wasn't admirable enough to convince you." He got that right. The Court will issue its ruling by the end of June. |
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