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Published in Print: March 3, 2004, as Appeal Makes for Unusual Bedfellows

Appeal Makes for Unusual Bedfellows

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Are the words "under God" in the Pledge of Allegiance a unifying acknowledgment of the role that religious faith has always played in the life of the nation? Or are they a blatant government endorsement of monotheism that tramples on the religious liberties guaranteed by the U.S. Constitution?

Passionate arguments on both sides of that question—and many related ones—run throughout the heap of legal briefs that has piled up at the U.S. Supreme Court as the justices ponder the constitutionality of public-school-led recitations of the 31-word pledge.

An eclectic array of organizations and individuals have flooded the justices with more than 30 friend-of-the-court briefs supporting the Elk Grove, Calif., school district in its legal battle over the pledge with atheist parent Michael A. Newdow.

Countering those filings are nearly 20 briefs from those backing Dr. Newdow in his argument that the school district is impermissibly indoctrinating his 4th grade daughter with religious dogma through its policy of requiring daily teacher- led recitations of the salute to the American flag.

Elk Grove Unified School District v. Newdow (Case No. 02-1624) has made for some strange bedfellows. Some groups that typically press for stringent enforcement of the First Amendment's prohibition on government-established religion have lined up behind the pledge along with conservative Christian groups that are usually on the other side in such cases.

The National Education Association, for example, says in its brief supporting the district that "the NEA is for the first time taking the position that a challenged practice does not violate the establishment clause."

Dr. Newdow—a physician with a legal degree who is representing himself in the case—is unfazed that some traditional advocates of church-state separation have sided against him. Comparing the societal bias against atheists to racism, he is convinced that the high court will defy popular opinion in his case, just as it did when it struck down segregated schooling 50 years ago in Brown v. Board of Education of Topeka.

Dr. Newdow predicts that the justices will uphold a federal appeals court decision in his favor, even though a political furor erupted when the first version of that opinion was handed down in June 2002.

"It's not even a close case," Dr. Newdow said during a recent interview at Stanford University law school, following one of a series of moot court sessions he's been using to practice for the March 24 oral arguments before the high court. "Maybe one or two justices will write something ridiculous that everyone knows is poppycock. But I think it will be affirmed."

Dr. Newdow's opponents, of course, are hoping that his predictions prove wildly optimistic.

"The pledge as it exists and has for the past 50 years has become part of the fabric of our society," Terence J. Cassidy, a Sacramento lawyer who is slated to represent the 55,000-student school district before the high court, said in an interview. "There's no reason to disrupt that patriotic tradition."

Historical Perspective

The case now before the court is an appeal by the Elk Grove school district of a revised, 2-1 ruling handed down last year by a three-judge panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco.

When the Supreme Court accepted the appeal last fall, it agreed to consider two questions. The first is whether Dr. Newdow has proper legal standing to challenge the district's policy of requiring teachers to lead willing students in daily recitations of the pledge. That is a technical but important procedural issue that could result in the justices' never reaching the second question: whether the pledge policy itself is constitutional.

On the question of the policy's merits, the role of history looms large in the legal arguments. Elk Grove Unified and the Bush administration—which is on the district's side—stress that the framers of the Constitution were mostly Christians who saw no problem with "nonsectarian" references to God by the government.

Over the years, they add, all three branches of the federal government have repeatedly woven religion into the national fabric. Examples cited include "In God We Trust" on currency, the national anthem, all the presidents' inaugural addresses, and the high court's opening of its sessions with "God save the United States and this honorable court."

"The pledge's reference to a 'nation under God,' in short, is a statement about the nation's historical origins, its enduring political philosophy centered on the sovereignty of the individual, and its continuing demographic character—a statement that itself is simply one component of a larger, more comprehensive patriotic message," the brief filed by U.S. Solicitor General Theodore B. Olson argues.

Dr. Newdow contends that the Founding Fathers' religious views have no more relevance "than their favoring of male superiority" or the fact "that they were Caucasian or that they were male."

"Could that 'history' justify 'one nation of male greatness' or 'one nation of white achievement?'" he asks in his brief.

He also dismisses the idea that "the motto, the money, or the supplications to God engaged in by government officials" show that the pledge is permissible.

"That argument—again analogizing with our history of government- condoned racism—is no more valid than one stating that segregation in the schools should have been upheld in Brown because there were racially segregated water fountains, railroad cars, housing developments, and swimming pools," his brief says.

Moreover, he says, the pledge is different from other references to God in government because "it is public school children at whom the religious dogma is directed," and "those young citizens actively participate in the religious exercise."

In Dr. Newdow's view, the 112-year- old pledge has been unconstitutional ever since Congress added the words "under God" to it in 1954 amid Cold War tension between the United States and the Soviet Union. He argues that the historical record clearly shows that the overriding purpose of the change was religious, while the district and the Bush administration point to evidence suggesting that the revision had secular purposes as well.

The two camps differ profoundly over how reciting the pledge in school squares with what the high court has said before on drawing the line between church and state.

In the past, various justices have referred to the pledge in passing as the kind of government acknowledgment of God that does not run afoul of the First Amendment. Dr. Newdow regards those references as of little consequence, while the district and the administration say they carry great weight.

'[T]his court had previously acknowledged recitation of the pledge is constitutional in public schools," the district's brief argues.

Father's Standing

On the issue of legal standing, the 9th Circuit court panel held 3-0 that Dr. Newdow had "standing as a parent to challenge a practice that interferes with his right to direct the religious education of his daughter."

The Bush administration and the district argue strenuously in their briefs that the lower court was wrong, in part because of questions related to Dr. Newdow's parental rights under state child-custody orders.

The district argues that the California family court has given his daughter's mother "final decisionmaking authority"—a point Dr. Newdow disputes. Thus, he "does not have the right to object to his daughter hearing or reciting the pledge," the district's brief contends.

Sandra Banning, the mother of the 4th grader, is a Christian who has filed court papers in support of the district's policy.

Both the district and the Bush administration say Dr. Newdow's legal footing is undermined because his daughter is exposed to far more religious indoctrination at home and in church than at school, and because no guarantee exists that barring public schools from leading the pledge would redress any harm to him caused by the district's policy.

"Indeed, the mother retains the right to transfer her daughter to a pervasively sectarian institution that begins the day not just with the pledge, but also with a prayer and a Bible reading," the administration's brief says.

That argument is "nonsensical," Dr. Newdow asserts in his own filing, in part because the family court "would undoubtedly deny a request to enroll the child in a Christian school" were he to object. More important, he argues, the question is not whether Ms. Banning has a right to expose her daughter to religion; it is whether the public schools enjoy such a right.

The district's "inculcation of monotheism" puts the power and prestige of the government behind the mother's views, he says, interfering with his "right to compete with the mother's indoctrination of their child without the government weighing in."

Vol. 23, Issue 25, Pages 25-26

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