Newdow has argued that his constitutional rights as a father are violated when his daughter, now 9, listens as the pledge is recited in class each morning. That teaches her that her father’s beliefs are wrong, he said. But in a spirited oral argument, many of the justices seemed skeptical of Newdow’s reasoning–as well as his legal right to bring the case in the first place.
When a federal appeals court first ruled in June 2002 that the phrase “under God” was unconstitutional, it sent the nation into a patriotic frenzy. Members of Congress passed a resolution supporting the pledge. Dozens of people left irate messages on Newdow’s home answering machine. Though the debate quieted while the case worked its way through the legal system, emotions still run high. According to a new poll released today by the Associated Press, nearly nine in 10 Americans support keeping the reference to God in the pledge.
Questions from the justices seemed to hint that many of them agree. They repeatedly pointed out that an earlier court decision already allows students to opt out of saying the pledge–or just the phrase “under God”–if they or their parents so choose. “She has a right not to participate,” said Justice Sandra Day O’Connor of Newdow’s daughter. O’Connor, often a decisive vote on the court, also noted that ruling that the pledge was a prayer could have implications for many other mentions of religion. “We have so many references to God in our daily lives,” she said, noting that the Supreme Court itself opened that morning with the declaration, “God save the United States and this honorable court.” She wondered whether a ruling in favor of Newdow could also affect the words “In God We Trust” on currency or patriotic songs like “God Bless America.” Newdow argued that those other examples were different because, unlike the pledge, they did not require an oath.
Even usually left-leaning justices seemed doubtful of Newdow’s arguments. Justice Stephen Breyer suggested that the mention of “under God” in the pledge was so generic and broad that it was not offensive to most people. “I don’t think I could include “under God’ to mean ’no God’,” Newdow answered, noting that any mention of a deity was offensive to atheists. Justice David Souter hinted that he agreed that the pledge did require “some affirmation” by those who say it. But he asked Newdow whether the mention of God was “so tepid, so diluted then so far, let’s say, from a compulsory prayer that in fact it should be, in effect, beneath the constitutional radar?”
Newdow had won special permission from the court to argue the case himself–a rare, but not unheard-of occurrence. (The odds for parties arguing their own cases are not great. In one recent case, a woman who did so lost 9-0.) Some legal observers wondered whether Newdow, a physician who’d spent his life practicing medicine, not law, was up to the job. He’d endured 11 mock court sessions, but had virtually no real courtroom experience. And he had to face off against legal pros–including the smooth Solicitor General Ted Olson. But Newdow held his own. He was articulate and forceful, but didn’t get overly emotional or seem cowed by the grand surroundings.
Newdow even provoked a moment of high emotion. He argued that the pledge had been altered in 1954–at the height of anticommunist sentiment–specifically to inject a note of religion into civic life. He said it was now a contentious issue, noting the public outcry over his case. But Chief Justice William Rehnquist asked about support for the 1954 congressional vote. When Newdow admitted it had been unanimous, Rehnquist replied, “That doesn’t sound divisive.” When Newdow replied, “That’s only because no atheist can get elected to public office,” the courtroom burst into applause–a major breach of decorum. Rehnquist then threatened to clear spectators from the courtroom if there were any more disruptions.
At other times during the arguments, though, the court seemed somewhat subdued, with both Newdow and Olson speaking for several minutes at a time without interruption from the bench. That could be in part because the court’s most spirited questioner, Justice Antonin Scalia, was absent. Newdow succeeded in getting Scalia to recuse himself after the justice made disparaging public comments about the case. (And that’s no small feat, as Scalia’s refusal to remove himself from an upcoming case involving his duck-hunting buddy, Vice President Dick Cheney, shows.)
Though Newdow seemed to face an uphill battle on the merits of his case, the justices first have to consider a more basic question: whether Newdow has “standing” to file suit at all. He first brought the case on behalf of his daughter, a student in the Elk Grove Unified School District outside Sacramento. But he’s now embroiled in a messy custody fight with the girl’s mother, Sandy Banning (the two never married). Family courts have granted Banning ultimate authority for making decisions about the girl’s religious and educational upbringing. Banning has filed an amicus brief saying that she’s a Christian and wants her daughter to say the pledge. She also says her daughter enjoys saying the pledge–in fact, she volunteered to lead the class in the oath on the first day of third grade.
Some of the justices seemed unconvinced that Newdow had any right to bring the case. “I think there’s a serious standing problem,” said Justice Anthony Kennedy. If enough others agree, they could dismiss the case on those grounds without ever deciding the constitutional question at hand. The justices did something similar in a case last term, dismissing a case involving Nike, the shoe company, for lack of standing.
But both sides in the Newdow case hope the court won’t use standing as a way to duck the broader issue. “I’d like the case to be resolved on the merits,” said Banning to reporters afterward. “I hope and pray they will support our history and the values of our nation.”
If the justices don’t dismiss the case on standing, they could uphold the appeals-court ruling that the pledge may not be said in schools. Or they could rule more broadly that “under God” must be stripped from the pledge altogether. If justices split 4-4, the appeals court ruling will stand in nine Western states, leaving 10 million children unable to say the pledge.
Newdow emerged from the court to face a throng of supporters chanting “We want Mike!” at the foot of the court steps. They held signs like AMERICA–IT’S NOT JUST FOR FUNDAMENTALISTS ANYMORE and ONE NATION UNDER THE CONSTITUTION. Another set of demonstrators recited the pledge–loudly including the words “under God”–sang “God Bless America” and knelt in prayer. Newdow gazed at the bank of television cameras and scanned the crowds who’d lined up to hear his case. “Anybody in the country can uphold the Constitution,” he marveled. “What a system.”
A ruling in the case, Elk Grove Unified School District v. Newdow, is due by June.
