One Nation Indivisible?

'Under God' Case At Supreme Court Tests Nation's Commitment To Church-State Separation, Religious Pluralism

California physician Michael Newdow is well aware that he's not the most popular man in America right now.

Newdow's fame or notoriety, dedpendding on your perspective began after he successfully brought a lawsuit on behalf of his 9-year-old daughter challenging school-sponsored recitation of the Pledge of Allegiance, due to its inclusion of the religious phrase "under God." He won at the 9th U.S. Circuit Court of Appeals, and now the case has been accepted by the Supreme Court.

Despite the frequent public condemnations of his actions, Newdow, 50, believes the conflict has already had positive benefits. The legal tumult, he says, has opened up a long overdue debate about the church-state implications of having religious terminology in a patriotic affirmation.

"I think there has already been a significant amount of education on this," Newdow said. "A lot of people come up to me and say, 'Hey, great!'.... It's not really hard to grasp."

On Oct. 14, the justices announced that they would review Elk Grove Unified School District v. Newdow. The legal tussle is guaranteed to be one of the most controversial church-state lawsuits to reach the high court in decades.

The original decision, handed down by the 9th Circuit on June 26, 2002, was the equivalent of a judicial bombshell. The court, ruling 2-1, declared that public school sponsorship of a pledge containing "under God" ran afoul of the religious neutrality required by the Condstitution.

"A profession that we are a nation 'under God' is identical...to a profession that we are a nation 'under Jesus,' a nation 'under Vishnu,' a nation 'under Zeus,' or a nation 'under no god,' because none of these professions can be neutral with respect to religion," declared the court. "The coercive effect of this policy is particularly pronounced in the school setting given the age and impressionability of schoolchildren, and their understanding that they are required to adhere to the norms set by their school, their teacher and their fellow students."

Newdow, who holds a degree in law as well as medicine, had been pursuing the case for years on behalf of his daughter, a student at Elk Grove Elementary School near Sacramento. Acting as his own attorney, Newdow doggedly pressed the case through the federal courts, winning a victory that surprised many observers.

Previous efforts to have "under God" in the Pledge declared unconstitutional had failed, and many who monitor church-state cases were paying scant attention to the Newdow effort, figuring it would meet the same fate.

News of the 9th Circuit court ruling hit the Associated Press wire and immediately sparked a media feeding frenzy. Although Americans United was not a party to the case, the organization was one of only a few national groups that publicly said the decision was constitutionally correct. AU Executive Director Barry W. Lynn and other staffers made the round of television and radio talk shows and talked to print reporters to discuss the church-state implications of the judicial action.

AU's Lynn said he acknowledged the controversial nature of the ruling but considered defending the ruling a part of Americans United's historic mission to educate people about the need for separation of church and state in public schools.

"This decision shows respect for freedom of conscience," said Lynn in a press statement issued after the 9th Circuit's ruling. "You can be a patriotic American regardless of your religious belief or lack of religion. Our government should never coerce school children or anyone else to make a profession of religious belief."

Americans United later issued a fact sheet, "One Nation Under God?: Fredquentdly Asked Questions About The 9th Circuit's Decision On The Pledge Of Allegiance," that discussed the important issues raised by the case. (The document remains available at AU's website at this address: www.au.org/press/pr072202.htm).

Reaction was also swift from the Religious Right. Those organizations professed outrage, and their political allies quickly jumped aboard the "one nation under God" bandwagon.

Reverberations were soon felt in Washington, D.C. As anger over the ruling spread, politicians in both parties blasted the decision. President George W. Bush announced that even though the federal government was not a party to the case, the United States government would intervene and pursue an appeal. When the 9th Circuit declined to re-examine the ruling, that left only one other avenue open: the Supreme Court.

Newdow is ready. A member of the California bar, Newdow hopes to argue the case personally and told Church & State that he feels confident that he can win it. Four justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer seem favorable to his argument, Newdow said.

"The question is, can we get one more?" he observed in a September interview.

As it turns out, Newdow may not need one more vote. In an unexpected move, Justice Antonin Scalia has recused himself from the case and will take no part in the deliberations. Scalia's departure could dramatically reshape the dynamics of the debate before the high court.

Newdow had requested that Scalia bow out of the case, citing a speech the conservative justice gave during a Knights of Columbus rally in Freddericksdburg, Va., on Jan. 12, 2003.

According to press accounts, Scalia blasted efforts to remove government sponsorship of religious messages, calling it "contrary to our whole tradition." Scalia made note of a protestor in the crowd hoisting a sign that read "Get religion out of government" saying, "If the gentleman holding the sign would persuade all of you of that, then we could eliminate 'under God' from the Pledge of Allegiance. That could be democratically done."

Americans United immediately prodtestded Scalia's comments and called for him to recuse himself from the case. Newddow formally requested that Scalia refrain from participation on Sept. 9, arguing that the justice appears to have prejudged the controversy.

The loss of Scalia, a combative justice with great disdain for church-state separation, sets up the possibility of a 4-4 tie. If that happens, the 9th Circuit's ruling would stand and would apply to the seven Western states in that circuit, but no nationwide precedent would be set.

Scalia's decision to stay out of the case was a blow to the Religious Right.

"With Justice Scalia, I think we would have had five clear votes to uphold the constitutionality of teachers leading students in the Pledge," Jordan Lorence of the Alliance Defense Fund told Focus on the Family's Citizenlink e-mail newsletter Oct. 14. "But without him, it's very possible this ends up in a 4-4 tie and that does not make me sleep well."

Other observers are not so sure the Supreme Court is ready to take this step. While the court does have a four-justice bloc favorable to church-state separation, it's unclear if those votes will hold in the Newdow case. Justices who normally vote to uphold strict First Amendment principles might say the reference to "under God" in the Pledge is benign or incidental and thus does not rise to the level of a First Amendment violation.

Much is at stake. For more than 50 years the Supreme Court has consistently struck down efforts to bring mandatory religious activity into public schools. The court has rejected official school prayer, teacher-led devotional Bible reading, creationism and other forms of state-sponsored worship.

If the high court overturns the 9th Circuit ruling in the Newdow case, it will represent the first significant reversal of this separationist trend. Undoubtedly, such a ruling would lead Religious Right groups to push the envelope and look for other ways to bring generic or "ceremonial" forms of religion into public schools.

The high court will have plenty of advice as it reviews the case. Twenty organizations have already filed friend-of-the-court briefs weighing in on the dispute, most asking that the justices overrule the 9th Circuit. More are expected to jump into the legal fray now that the argument is pending.

The case may look like a classic church-state showdown, but to Newdow, there's more to it. In some respects, the "under God" controversy is an extension of a long-running dispute between Newdow and Sandra Banning, his daughter's mother.

Newdow has been vocal about his atheism, and since the 9th Circuit ruling, has addressed several non-theistic groups, where he has been well received. But Banning says the child that she and Newdow had together they never married is a Christian who does not object to saying "under God" in the Pledge. Newdow is seeking joint custody of the child, and for a time it looked as if the case might be thrown out of court over issues of Newdow's standing that is, his right to sue. (A plaintiff in federal court must be able to show some type of injury or harm to keep a case from being dismissed.)

That could still happen. The Supreme Court has asked attorneys on both sides to address the standing question as well as the church-state issue. It is possible that the court could decide that Newdow lacks standing and toss out the case without ever addressing whether the use of "under God" in public school Pledge recitations violates church-state separation.

Newdow argues that the standing issue is now moot, pointing out that on Sept. 11, a California court awarded him partial custody of his daughter.

Banning's attorneys argue that since the child does not object to saying "under God" in the Pledge, Newdow has no case. Her legal team, led by ex-Whitewater prosecutor and Religious Right stalwart Kenneth Starr, filed a brief at the high court asking the justices to take the case and overturn the 9th Circuit.

The brief argues that the Pledge "reflects the democratic beliefs in a diverse society" and says that Banning's daughter does not object to "the traditional recitation of the pledge."

Not surprisingly, Newdow sees things differently. He argues that as a father, he has a duty to protect his child. As a non-believer in a predominantly religious society, Newdow considers any type of state-sponsored religion harmful.

Critics have accused Newdow of using his daughter, now in fourth grade, to advance his own agenda. He bristles at the suggestion.

"I'm trying to protect her from harm," he said.

Newdow told Church & State he was determined to shield his daughter from adverse publicity surrounding the lawsuit and never uses her name in interviews. It was her mother, he charged, who went public and "told the entire nation" about the child.

Americans United filed a brief with the Supreme Court supporting the 9th Circuit's ruling and asked the high court not to review the decision. Now that the court has chosen to intervene, the organization will file a brief arguing that the 9th Circuit's ruling should be upheld.

AU saw no need for the high court to accept the case. Newdow, by contrast, feels differently. He wanted the justices to take the case, in the hope that the ruling can be extended nationwide.

It's a risky strategy, but Newdow believes it is worth pursuing. In the meantime, he has two other cases under way, one challenging taxpayer-funded prayers at President Bush's inauguration in January of 2001 and another challenging taxpayer-funded chaplains in Congress.

At first glance, it might seem that these legal cases faces uphill battles but some people said the same thing about Newdow's challenge to "under God."

Newdow's legal battles have made him anathema to the Religious Right. The groups have accused him of trying to strip religion from public life through his legal challenges, but Newdow denies that. He notes that religious groups, like other organizations, can use public facilities and spaces. What he objects to, Newdow said, is government promotion of religion.

"I'm trying to get the Constitution upheld," asserted Newdow. "Governdment is not the public. Government is the government, and they are forbidden from promoting religion."

For now, attention is focused on Newdow's "under God" case. The controversy is barely under way at the Supreme Court, but Religious Right groups are already in the fray. Jerry Falwell issued an e-mail bulletin Oct. 16 under the lurid headline "WILL GOD BE BANNED?"

"It still astonishes me that we have arrived at a point in our nation's history that the mere mention of God's name something our Founders recurrently did as they established this religiously influenced nation is now seen as inappropriate and downright wrong," Falwell wrote to supporters.

Other Religious Right groups decided to launch an old-fashioned petition drive with a new, high-tech twist. Leaders of a website called grassfire.net gathered signatures over the internet asking the Supreme Court to uphold "under God" in the Pledge. The organization collected about 700,000 signatures and delivered them to the high court Oct. 29.

But such moves are largely symbolic. While petition drives might sway an elected legislator, judges are expected to base their rulings on the Constidtution and the laws of the United States and not be influenced by pressure campaigns.

Nevertheless, such efforts are indicative of popular resistance to the 9th Circuit ruling. When the decision came down, several public-opinion polls showed huge majorities disagreeing with it. Religious Right groups, always eager to exploit emotional "culture war" issues for political gain, sense an opportunity. A decision in Newdow's case is likely to come down by the end of June 2004 right in the middle of what is expected to be a hard-fought presidential campaign and close House and Senate races.

The Bush administration seems well aware of the potential political payoff of defending the Pledge. Bush and Attorney General John Ashcroft were vocal critics of the ruling, and the Justice Department has labored to keep a high profile in the case, even though the lawsuit does not directly involve the federal government. When the case is argued at the high court, the U.S. solicitor general will split time with the attorney for the Elk Grove School District defending the use of "under God" in the Pledge.

Newdow knows his case could spark a backlash. If the Supreme Court strikes down public school recitation of the Pledge, Religious Right leaders and their allies are likely to immediately launch a drive for a constitutional amendment designed to lower the wall of separation between church and state.

For Newdow, that's a risk worth taking.

"The American public doesn't understand what this issue is all about," he said. "I'm trying to keep the government from advocating any particular religious view."

Constitutional amendments are not easy to pass. To become part of the nation's governing charter, an amendment would have to pass both chambers of the Congress by a two-thirds vote and win approval in three-fourths of the state legislatures. But the process, while difficult, is not insurmountable. Excluding the ten amendments of the Bill of Rights, the Constitution has been amended 17 times since the ratification of the 11th Amendment in 1795.

AU's Lynn, a United Church of Christ minister, said it's ironic to see the Religious Right working desperately to save "under God" in the Pledge. Lynn noted that some courts have upheld the use of "under God" and other symbolic uses of religion by government such as embossing the phrase "In God We Trust" on money by asserting that, over time, government's use of religious terminology drains the words of their religious significance.

Alternatively, courts have argued that the use of this language is a permissible form of "ceremonial deism."

"I'm not quite sure what exactly 'ceremonial deism' is," said Lynn, "but it's clear to me that the First Amendment stands for the proposition that government may not endorse religion either in a specific sense or a generic one. The U.S. government can no more promote 'ceremonial deism' than it can prodmote Episcopadlianism, Islam or Mormondism."

Continued Lynn, "No American especially a school-aged child should be forced to make a religious affirmation as a condition of expressing love of country. Prior to 1954, we had a Pledge that did not divide Americans along religious lines. We should go back to that."