So determined is atheist Michael Newdow to not have his 9-year-old daughter hear the Pledge of Allegiance recited in her classroom that he went to the Supreme Court on Wednesday to argue his case in person.
Newdow was in the rare position of being both a party to a landmark constitutional case and the attorney arguing the case before the court.
Every time his daughter’s class recites the Pledge of Allegiance with the phrase “under God” in it, Newdow told the justices, she is being forced "to say her father is wrong.”
'Slapped in the face'
Even though Newdow is not the girl’s custodial parent and even though the girl’s mother wants her to recite the pledge, Newdow insisted that his rights and his conscience were being violated.
Knowing that she recites the pledge “is like I’m getting slapped in the face,” Newdow told the justices. “I want my beliefs to given the same weight as everybody else’s.”
What’s wrong with the pledge, in Newdow’s view? “The government is saying there is a God,” he told the court.
Two years ago, the Court of Appeals for the Ninth Circuit ruled in favor of Newdow, who had contended that the Elk Grove, Calif., school district violated the First Amendment’s command that “Congress shall make no law respecting an establishment of religion” by requiring teachers to lead students in the pledge.
But Newdow received a skeptical reception from eight justices Wednesday. (Justice Antonin Scalia recused himself from the case because he had given a speech expressing his view that "under God" could be removed from the pledge only by Congress.)
Does Newdow have standing?
Based on questioning from the justices, it appears that Newdow’s primary problem will be to convince them that he has legal standing in the case.
A California court has given Sandra Banning, the mother of Newdow’s daughter, final decision-making authority over the girl’s education.
It is highly unusual for the Supreme Court to involve itself in ordinary custody disputes between two alienated parents, but for much of Wednesday’s oral argument, it seemed as if the justices and the audience were in a family court, not in the august precincts of the highest court in the land.
Justice Anthony Kennedy suggested in questioning Newdow that his attempt to be given standing in the case “violates the common core of the court’s standing rule.”
Justice David Souter wondered whether allowing Newdow to make himself a plaintiff in the case would undercut “next friend” precedents, which guide courts in deciding who can properly speak for minors or for anyone who can’t speak for himself.
Justice Sandra Day O’Connor pointed out to Newdow that his daughter “does have a right not to participate” in her class’s recitation of the pledge.
Newdow responded that the court had ruled in 1992 that a rabbi could not recite a benediction including references to God at a public school graduation ceremony because the setting created coercion for students to join the prayer or listen to it.
Referring to that 1992 case, O’Connor replied to Newdow, “That was a prayer,” pointedly implying that the pledge, even including “under God” is not a prayer.
Is the pledge a prayer?
Chief Justice William Rehnquist joined in, telling Newdow the pledge “doesn’t sound anything like a prayer.” Rehnquist quoted the phrase “with liberty and justice for all” from the pledge and told Newdow, “You can disagree with ‘under God,’ you can disagree with ‘with liberty and justice for all,’ but that doesn’t mean it’s a prayer.”
A few moments later Justice Ruth Bader Ginsburg returned to the coercion question, agreeing with O’Connor and telling Newdow, “the child does not have to say it at all,” because the school district’s policy allows students to remain silent if they choose.
But Newdow insisted that the classroom setting would “impose on a small child,” forcing her to go along in what he saw as a religious expression.
Kennedy impatiently told Newdow, “you’re arguing based on the child’s interest,” instead of arguing why he — Newdow — was having his rights violated.
By trying in effect to represent the child and not himself, Kennedy said, Newdow had created “a serious standing problem.”
Even though Newdow’s argument did not seem to receive much support from the justices, Newdow did get a boost from the audience in the courtroom. Newdow had argued that the words “under God” were divisive and damaging to national unity, by pitting atheist against believers.
“What was the vote in Congress” when it decided in 1954 to add the words “under God” to the pledge, asked Rehnquist.
Newdow replied that it was “apparently unanimous,” prompting Rehnquist to question how divisive the pledge really was.
“That’s because no atheists can get elected to Congress,” Newdow insisted, prompting a sudden round of applause in the audience — in flagrant violation of the court’s rules. “The courtroom will be cleared if there’s any more clapping,” Rehnquist declared.
After the oral argument ended, both Banning and Newdow walked out to an array of television cameras and reporters in front of the court to give their assessment of how the historic day had gone for each of them.
Mother hopes for quick ruling
Expressing a naively optimistic view of how quickly the high court works, Banning told reporters: “As a mother, as a Christian and an American, I’m hoping the court will resolve this issue today and that this will be the last time that as a nation we will have to come to the Supreme Court in order to determine whether our pledge is unconstitutional.”
Asked for her evaluation of Newdow’s skill in representing himself before the high court, Banning said, “Michael did very well. He was very well-spoken.… He showed as much passion today in the Supreme Court as he does in the family law court.”
Banning has kept her daughter out of the public eye as the case has wended its way through the courts. Banning told reporters Wednesday, “The first day of third grade she volunteered — she was the first one to raise her hand to lead the class in reciting the pledge.”