A California atheist told the Supreme Court on Wednesday that the words “under God” in the Pledge of Allegiance are unconstitutional and offensive to people who don’t believe there is a God.
Michael Newdow, who challenged the Pledge of Allegiance on behalf of his daughter, said the court has no choice but to keep it out of public schools.
“It’s indoctrinating children,” he said. “The government is supposed to stay out of religion.”
But some justices said they were not sure if the words were intended to unite the country or express religion.
Chief Justice William H. Rehnquist noted that Congress unanimously added the words “under God” in the pledge in 1954.
“That doesn’t sound divisive,” he said.
“That’s only because no atheists can be elected to office,” Newdow responded.
Some in the audience erupted in applause in the courtroom and were threatened with expulsion by the chief justice.
Standing to bring the lawsuit
The subject of Newdow’s right to bring the lawsuit had dominated the beginning of arguments in the landmark case to decide if the classroom salute in public schools violates the Constitution’s ban on government-established religion.
Terence Cassidy, attorney for a suburban Sacramento school district where Newdow’s 9-year-old daughter attends classes, noted to justices that the girl’s mother opposed the lawsuit. “The ultimate decision-making authority is with the mother,” he said.
The mother, Sandra Banning, is a born-again Christian and supporter of the pledge. “I object to his inclusion of our daughter” in the case, she said earlier Wednesday on ABC’s “Good Morning America” show. She said she worries that her daughter will be “the child who is remembered as the little girl who changed the Pledge of Allegiance.”
Newdow had sued the school and won, setting up the landmark appeal before a court that has repeatedly barred school-sponsored prayer from classrooms, playing fields and school ceremonies. But justices could dodge the issue altogether if they decide that Newdow needed the mother’s consent, because she has primary custody.
Rehnquist said that the issues raised in the case “certainly have nothing to do with domestic relations.” And, Justice David H. Souter said that Newdow could argue that his interest in his child “is enough to give him personal standing.”
Solicitor General Theodore Olson, the Bush administration lawyer arguing for the school district, said that the mother was concerned that her daughter had been “thrust into the vortex of this constitutional case.”
He said the Pledge of Allegiance should be upheld as a “ceremonial, patriotic exercise.”
Overwhelming support in poll
A new poll shows that Americans overwhelmingly support the reference to God. Almost nine in 10 people said the reference to God belongs in the pledge despite constitutional questions about the separation of church and state, according to an Associated Press poll.
Dozens of people camped outside the court on a cold night, bundled in layers and blankets, to be among the first in line to hear arguments in the historic case. “I just wanted to have a story to tell my grandkids,” said Aron Wolgel, a junior from American University.
More than 100 supporters of the pledge began the day reciting it, emphasizing the words “under God.” Some supporters of the California father, outnumbered about 4-to-1, shouted over the speeches of pledge proponents. They carried signs with slogans like “Democracy Not Theocracy.”
God was not part of the original pledge written in 1892. Congress inserted it in 1954 after lobbying by religious leaders during the Cold War. Since then, it has become a familiar part of life for generations of students.
Newdow compared the controversy to the issue of segregation in schools, which the Supreme Court took up 50 years ago in Brown v. Board of Education.
“Aren’t we a better nation because we got rid of that stuff?” Newdow, a 50-year-old lawyer and doctor arguing his own case at the court, asked before the argument.
The AP poll, conducted by Ipsos-Public Affairs, found college graduates were more likely than those who did not have a college degree to say the phrase “under God” should be removed. Democrats and independents were more likely than Republicans to think the phrase should be taken out.
Justices could dodge the issue altogether. They have been urged to throw out the case, without a ruling on the constitutional issue, because of questions about whether Newdow had custody when he filed the suit and needed the mother’s consent.
Absent from the case is one of the court’s most conservative members, Justice Antonin Scalia, who bowed out after he criticized the ruling in Newdow’s favor during a religious rally last year. Newdow had requested his recusal.
The case is Elk Grove Unified School District v. Newdow, 02-1624.