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Wary Supreme Court Hears Arguments in Pledge Case

By Caroline Hendrie — March 24, 2004 7 min read

If the justices of the U.S. Supreme Court saw much merit in Michael A. Newdow’s arguments that teacher-led recitations of the Pledge of Allegiance in public schools violate the U.S. Constitution, relatively little of that sympathy was on display during the March 24 oral arguments in the high-profile case.

Despite Dr. Newdow’s scant courtroom experience, the justices pulled no punches as they questioned the atheist father, who is a lawyer as well as a physician, about his objections to the words “under God” in the salute to the flag that is recited daily in his daughter’s California classroom.

Several of the eight justices participating in the case pointed out that schoolchildren have been allowed to opt out of saying the pledge since the high court ruled in West Virginia State Board of Education v. Barnette in 1943 that schools could not compel youngsters to recite it.

Other justices suggested that even though saying the pledge represents an affirmation that the United States is “one nation under God,” that reference does not render it the kind of spiritual exercise that would run afoul of the First Amendment’s prohibition of a government establishment of religion.

And still others indicated that Dr. Newdow was on shaky ground in suggesting that his daughter is somehow harmed by reciting the pledge, given that she is being raised by her mother, whom Dr. Newdow never married, as a practicing Christian.

But during a performance that many high court observers viewed as remarkably poised given his lack of courtroom experience, Dr. Newdow stressed that it was he who was being harmed by the policy in California’s Elk Grove Unified School District of requiring daily teacher-led recitations of the pledge.

“I don’t believe in God, and every school morning my daughter is asked to stand up, face that flag, place her hand over her heart, and say that her father is wrong,” he told the justices.

Countering Dr. Newdow’s arguments was a lawyer for the 55,000-student Elk Grove district and U.S. Solicitor General Theodore B. Olson, who is helping the district defend its policy on the pledge in Elk Grove Unified School District v. Newdow (Case No. 02-1624).

Both stressed in their oral arguments and in court papers that the words “under God” reflect the religious heritage of the nation, especially the view that individuals’ “inalienable rights” derived from a supreme being and not from the state.

“The Pledge of Allegiance is not what this court has said the establishment clause protects against, that is to say, state-sponsored prayers, religious rituals or ceremonies, or the imposition or the requirement of teaching or not teaching a religious doctrine,” Mr. Olson said.

Prayer or Patriotism?

What exactly is meant by “under God,” and whether those two words added by Congress in 1954 made the pledge a prayer, were questions that cropped up repeatedly during the arguments.

“Do you think the pledge has the same meaning today as when ... the words ‘under God’ were inserted?” Justice John Paul Stevens asked Mr. Olson at one point.

“Yes and no,” the solicitor general replied.

Mr. Olson said the pledge is an acknowledgment of the religious basis of the belief held by the framers of the U.S. Constitution that the power of the people to form a new, independent government derived from a higher being.

“In that sense, ... that has that same significance to this country as it did in 1954 when it was amended,” he said. At the same time, he added, “this court has also said that the ceremonial rendition of the Pledge of Allegiance in context repeatedly over the years ... would cause a reasonable observer to understand that that is not a religious invocation.”

Later, Justice Stevens posed the same question to Dr. Newdow about whether the words “under God” have the same meaning that they did a half-century ago.

Dr. Newdow cited the political outcry that followed a June 2002 opinion in his favor by a three-judge panel of the U.S. Circuit Court of Appeals for the 9th Circuit, in San Francisco. Among other reactions to the ruling, the U.S. Senate voted 99-0 for a resolution supporting the pledge, and President Bush denounced the federal appeals court ruling.

“Clearly, it has enormous significance to the American public,” Dr. Newdow said.

Whether the pledge should be seen as a prayer is a matter of considerable legal significance because of the court’s previous rulings on the constitutional restrictions on prayer in the public schools.

During the oral argument, Dr. Newdow cited one such ruling—the 1992 decision in Lee v. Weisman that struck down clergy-led prayers at public school graduations—as support for his view that his daughter is being coerced to say the pledge even though she may opt out.

“That was a prayer,” protested Justice Sandra Day O’Connor, in reference to bene-diction at issue in the graduation case.

“Well, I’m not sure this isn’t a prayer,” Dr. Newdow replied.

Justice O’Connor said that “reasonable people could look at the pledge as not constituting a prayer.”

Dr. Newdow replied that President Bush had said the pledge did constitute a prayer. To that, Chief Justice William H. Rehnquist cautioned that “we certainly don’t take him as the final authority on this,” prompting laughter in court.

Pursuing the question of whether the pledge should be seen as a prayer, Justice Ruth Bader Ginsburg observed, “It’s two words sandwiched in the middle of something, and the child doesn’t have to say those words.”

“But the government is not allowed to take a position on that,” Dr. Newdow replied. “Government is saying there’s a God.”

Later, he added: “This issue is, is it religious, and to say this is not religious seems to me to be somewhat bizarre.”

Broad Meaning?

Whether the words “under God” could be construed as having a meaning so broad as to include even the “religious-type beliefs in the minds of people who are not traditionally religious” was a possibility raised by Justice Stephen G. Breyer as one rationale for rejecting Dr. Newdow’s arguments.

“So, do you think God is so generic in this context that it could be that inclusive?” he asked. “And if it is, then does your objection disappear?”

Dr. Newdow replied that “I don’t think that I can take ‘under God’ to mean no God.”

Yet even if the pledge’s reference to God offends some Americans, Justice Breyer said, “the question is whether the government has the power to work that kind of offense.”

The pledge is “not perfect,” he added, “but it serves a purpose of unification at the price of offending a small number of people like you.”

Dr. Newdow replied that the pledge served the same purpose during the 62 years between its composition in 1892 and its revision by Congress. The words “under God” represent “religious dogma” that is needlessly divisive, he said.

Picking up on that theme, Chief Justice Rehnquist prompted Dr. Newdow to acknowledge that the measure amending the pledge had apparently sailed through Congress unanimously 50 years ago. “Well, that doesn’t sound divisive,” the chief justice remarked.

Sparking a round of laughter and applause, Dr. Newdow replied, “That’s only because no atheist can get elected to public office.” Responding to the outburst from the audience, the chief justice warned that he would “clear the courtroom if there’s any more clapping.”

Justice David H. Souter, who generally favors strict separation of church and state, said he would “assume” that “under God” was more than merely a historical description of “how somebody else once thought.”

He said “a fair reading” of the pledge would be as affirming “that’s the way the republic ought to be conceived, as under God.”

But he asked Dr. Newdow what he made of the argument that over the years the religious affirmation implied by the words “under God” had become “so tepid, so diluted, and so far ... from a compulsory prayer that it should be, in effect, beneath the constitutional radar.”

Dr. Newdow said he thought “that whole concept goes completely against the ideals underlying the establishment clause,” adding that “for the government to come in and say, we’ve decided for you this is inconsequential or unimportant is ... an arrogant pretension.”

“It’s like I’m getting slapped in the face every time, bam, ... this is a nation under God, your religious belief system is wrong,” he added.

Legal Standing at Issue

While most of the questions directed at Dr. Newdow concerned the merits of his arguments, that was not the case with Terence J. Cassidy, a lawyer from Sacramento, Calif., who represented the school district.

His initial remarks, and the questions directed at him by the justices, were almost entirely devoted to the threshold question of whether Dr. Newdow even has legal standing to challenge the district’s policy.

Opening the questioning, Justice O’Connor observed that the high court generally defers to lower courts on matters of standing. Although it divided 2-1 on the merits of his case, the panel of the 9th Circuit court ruled unanimously that Dr. Newdow had standing to bring the case on his own behalf.

Mr. Cassidy said that the school district believed the appeals court was mistaken, and that Dr. Newdow lacked standing in part because his daughter’s mother has the final say in making decisions regarding the girl’s education and religious upbringing—a point Dr. Newdow disputes.

“We believe this court should defer and not interfere with what amounts to the mother’s rights and interests in the ... educational upbringing of the daughter,” Mr. Cassidy said.

A decision in the case is expected by late June.

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