Law & Courts

High Court Hesitant to Bar Pledge in Schools

By Caroline Hendrie — March 31, 2004 7 min read
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Michael A. Newdow, the California atheist who wants the words “under God” out of the Pledge of Allegiance, told the U.S. Supreme Court last week that he suffers serious injury to his rights as a father every time his 4th grade daughter is asked to recite the pledge in her public school classroom.

A 13-year-old from Bristol, Conn., prays outside the U.S. Supreme Court.
Bryana Russell, left, a 13-year-old from Bristol, Conn., prays outside the U.S. Supreme Court last week with others who want to keep “under God” in the Pledge of Allegiance, while atheists and others opposed to the wording express their views.
—James W. Prichard/Education Week.

“I am an atheist. I don’t believe in God,” said Dr. Newdow, an emergency-room physician with a law degree who is representing himself. “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.”

In a passionate but sure- footed performance that belied his scanty courtroom experience, Dr. Newdow deftly parried the justices’ questions as he laid out his case for why teacher- led recitations of the pledge violate the U.S. Constitution. One of his quick- witted responses sparked an outburst of applause—unusual in the high court— prompting Chief Justice William H. Rehnquist to threaten to clear the courtroom.

Yet if the justices saw much merit in his arguments, little of that sympathy was on display during the lively oral arguments on March 24. Last fall, Dr. Newdow had gotten one of the court’s toughest questioners, Justice Antonin Scalia, to recuse himself because of public remarks criticizing a lower-court ruling in the case. But throughout the hour-long session, the remaining justices pulled no punches as they seemed to explore possible rationales for holding that the pledge does not run afoul of the First Amendment’s prohibition of a government establishment of religion.

Hoping to aid them in that task was a lawyer for the Elk Grove school district outside Sacramento, Calif., and U.S. Solicitor General Theodore B. Olson, who is helping the 55,000-student 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 nation’s religious heritage and the historical belief 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.

Opt-Out Cited

Sounding a theme echoed by several justices, Justice Ruth Bader Ginsburg noted repeatedly that schoolchildren can opt out of saying the pledge. That right was established in 1943—before the pledge included “under God"—when the high court ruled in West Virginia State Board of Education v. Barnette that schools could not compel youngsters to recite it.

“It’s two words sandwiched in the middle of something, and the child doesn’t have to say those words,” she said.

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

Justice David H. Souter said “a fair reading” of the pledge would be as an affirmation that “that’s the way the republic ought to be conceived, as under God.”

Atheist Michael A. Newdow speaks to reporters ourisde the Supreme Court.
Atheist Michael A. Newdow speaks to reporters after arguing against the use of “under God” in the pledge before the high court.
—James W. Prichard/Education Week.

But he suggested that over the years the implied religious affirmation might have become “so tepid, so diluted, and so far … from a compulsory prayer that it should be, in effect, beneath the constitutional radar.”

Dr. Newdow rejected that view, saying, “for the government to come in and say, we’ve decided for you this is inconsequential or unimportant is … an arrogant pretension.”

When he sees the flag and thinks of the pledge, he added, “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.”

Among the recurrent questions was whether the significance of “under God” had changed since Congress inserted the words in 1954, and whether Americans are effectively praying when they say them.

“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. He replied that the pledge acknowledges the religious basis of the constitutional framers’ belief that the people’s power to form a new, independent government came from God.

“In that sense, … that has that same significance to this country as it did in 1954,” he said. At the same time, he argued, the ceremonial rendition of the pledge in context repeatedly over the years had made clear that it “is not a religious invocation.”

Dr. Newdow later 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, as proof that the words retain a distinctly religious meaning. Among other reactions to the ruling, the U.S. Senate voted 99-0 for a resolution supporting the pledge, and President Bush denounced it.

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

Broad Meaning?

As one rationale for upholding the current pledge, Justice Stephen G. Breyer suggested that “under God” could be interpreted as so “generic” as to include even the “religious-type beliefs in the minds of people who are not traditionally religious.”

“Then does your objection disappear?” he asked Dr. Newdow.

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

The pledge is “not perfect,” Justice Breyer went on to suggest, “but it serves a purpose of unification at the price of offending a small number of people like you.”

Dr. Newdow said it had 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 amendment of the pledge had sailed through Congress unopposed 50 years ago. “Well, that doesn’t sound divisive,” the chief justice remarked.

Protesters try to block a banner held by atheists outside the U.S. Supreme Court.
Gini Wellman of Texas, top left, Luann Pearson of New Mexico, and Pat Mills of Alabama try to block a banner held by atheists outside the U.S. Supreme Court.
—James W. Prichard/Education Week.

“That’s only because no atheist can get elected to public office,” Dr. Newdow retorted, triggering a round of laughter and applause. The chief justice then sternly warned that he would “clear the courtroom if there’s any more clapping.”

Because of the court’s previous rulings restricting public school prayer, whether the pledge should be seen as a prayer is important.

Dr. Newdow cited one such ruling— the 1992 Lee v. Weisman decision 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 benediction at issue in the graduation case.

“Well, I’m not sure this isn’t a prayer,” Dr. Newdow replied, adding that President Bush had said it was one.

“We certainly don’t take him as the final authority on this,” Chief Justice Rehnquist said, earning him his own round of laughter.

Legal Standing at Issue

Terence J. Cassidy, a Sacramento lawyer who represented the Elk Grove district, spent his time before the justices mostly on the threshold question of whether Dr. Newdow even has legal standing to challenge the district’s policy.

While Justice Anthony M. Kennedy said he was troubled by the issue, 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 argued that Dr. Newdow lacked standing in part because his daughter’s mother has the final say regarding the girl—a point Dr. Newdow disputes. The girl’s mother, who was never married to Dr. Newdow, is raising the child as a practicing Christian and does not object to her saying the pledge as written.

“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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