Court hears arguments for, against 'under God' in pledge
By Phillip Jordan and Robert Marus
Associated Baptist Press
WASHINGTON (ABP)–In hearing arguments on whether the Pledge of Allegiance's reference to God is constitutional, the justices of the Supreme Court seemed concerned not only with Michael Newdow's case, but also with his right to make it.
Newdow, the atheist father who successfully sued his daughter's California school district to stop its policy of teacher-led recitation of the pledge, represented himself before the court March 24. Justices peppered him with questions about his right to bring the lawsuit, since he does not have primary custody of his daughter.
In 2002, a divided three-judge panel of the 9th U.S. Circuit Court of Appeals declared the Elk Grove Unified School District's policy a violation of the Constitution's ban on government establishment of religion because the pledge contains the assertion that the United States is “under God.”
That panel's majority ruled that the suburban Sacramento district's policy violated Newdow's rights in raising his then-8-year-old daughter. A majority of the 9th Circuit's full 24-member panel later reaffirmed the decision.
But in the arguments before the high court, Newdow's opponents disputed his basis for even filing the suit.
Newdow had “no right to bring this case in his daughter's name,” said Solicitor General Ted Olson.
“He has his own rights,” Justice Anthony Kennedy countered. “He says he has the right as a father to influence” his child's education on religious matters without interference from the state, he continued. However, Kennedy also repeatedly asked Newdow pointed questions about his right to assert his legal claim.
The issue over Newdow's standing arose after the 9th Circuit's decision. Amid a nationwide uproar following the ruling, the child's mother told the press she and her daughter were practicing Christians and were not offended by the pledge.
Sandra Banning also said the fact that Newdow–to whom she was never married–did not have custody of the child at the time he filed the suit meant he lacked legal standing. She then sought to intervene in the case.
Some longtime Supreme Court observers have predicted the justices will use the standing issue to overturn the 9th Circuit's ruling without reaching the constitutional issue–essentially “punting” on the case's First Amendment merits.
Although the pledge has been around in forms similar to its present one since the late 1800s, the “under God” clause was not part of it until 1954. Congress added the words to the pledge then as a response to the perceived threat of atheistic communism.
In their opinions on several church-state cases since 1954, the justices have repeatedly referred to the pledge and other minor governmental references to God–such as the national motto, “In God we trust”–as belonging in a category of generalized government religious endorsements often termed “ceremonial deism.”
Olson seized on that argument in his presentation. The “under God” phrase “is not a religious invocation; it is not a prayer,” Olson said. Rather, he asserted, “It is an acknowledgement of the religious basis of the framers of the Constitution.
“The Pledge of Allegiance is not what this court has said the (First Amendment's) establishment clause protects against.”
In questioning Newdow, Justice Sandra Day O'Connor noted that a previous decision by the court established his daughter's right to opt out of reciting the pledge. She wondered why, therefore, he believed recitation of the pledge was unconstitutional.
In response, Newdow conceded his daughter was not required to say the pledge, but she was nonetheless coerced to do so. He cited the court's 1992 Lee vs. Weisman decision, in which they ruled that public school students could not be subjected to a religious exercise even if they didn't have to participate personally.
In comments after the arguments, Banning told reporters she is “happy the court will resolve this issue.” She said she believed public school teachers leading in recitation of the pledge is not an unconstitutional endorsement of religion, but rather a simple acknowledgement of “the values we hold dear” as Americans. She added that she's “never had any objection” to her daughter reciting the pledge.
On the plaza in front of the court building, atheists and conservative Christians squared off in dueling protests. But even as they rallied a few feet away, Newdow said his case was not trying to set up a war over religious beliefs.
“This isn't atheism versus theism; this isn't God versus no God,” he told reporters. “This is about the government staying out of the religion business.”
The court heard the arguments without participation from one of its most conservative members. Justice Antonin Scalia recused himself from the case, presumably because of questions about his impartiality. The questions stemmed from an incident last year in which he made public comments criticizing the 9th Circuit's ruling.
The justices will likely render a decision on Elk Grove Unified School District vs. Newdow shortly before they end their 2003-2004 session in June.