United States of America v. NewdowThe Supreme Court set the stage for a major First Amendment battle over the words "under God" in the Pledge of Allegiance when it agreed to hear United States of America v. Newdow. Four years ago, Sacramento, Calif., atheist Michael Newdow's pro se campaign to strike the words from the Pledge seemed merely quixotic. Now, the case was placed on the agenda for the nation's highest court, amid an intense debate over issues of religion and patriotism in a time of war. Many Court experts had predicted that the Court would summarily reverse the ruling by the 9th U.S. Circuit Court of Appeals last year that sided with Newdow and found that "under God" in the Pledge recited by public school students violated the First Amendment's establishment clause. Instead, the Court agreed to give full review of the case Elk Grove Unified School District v. Newdow, No. 02-1624, reframing the case in a way that worried Pledge supporters, asking whether the challenged school policy is constitutional in that it "requires teachers to lead willing students in reciting the Pledge." Justice Antonin Scalia added an extra dose of unpredictability by recusing from the case, depriving Pledge supporters of a near-certain vote and making it easier for Newdow to win; he would now need only four votes, not five, to prevail. Scalia was apparently responding to Newdow's unconventional Sept. 9 "suggestion for recusal" based on a speech Scalia gave in January in which he suggested that the words "under God" could be excised from the Pledge only through legislative action by Congress, which first inserted the phrase in 1954. The Court left itself a possible escape hatch, indicating that in addition to the First Amendment issue, it wanted to hear arguments on whether Newdow had standing to bring the suit on behalf of his 9-year-old daughter. If the Court finds Newdow has no standing, the justices could conceivably avoid the contentious Pledge issue. The standing issue arose because from February 2002 until last month, Newdow did not have legal custody over his daughter, and the girl's mother, Sandra Banning, engaged Kenneth Starr of Kirkland & Ellis to contest Newdow's standing on the Pledge issue and to tell the Court that she had no objection to her daughter saying the Pledge. In a California Superior Court proceeding, Newdow regained partial legal custody, though Banning's lawyers still contest his standing. "It would be a shame to see this opportunity to straighten out the establishment clause go by the boards because of the standing issue or Scalia's recusal," says Kevin Hasson of the Becket Fund for Religious Liberty, which filed a brief against Newdow for the Knights of Columbus, a Roman Catholic organization. "Scalia's recusal shifts the center of the Court to the left." Convincing the justices to overturn the 9th Circuit will become a "much harder sell." In another unusual twist, Newdow indicated he would continue with his plan to argue the case himself, in spite of concerns expressed by First Amendment advocates who are his natural allies. Newdow, who has been a licensed California lawyer only since last July, said he would file a motion to argue pro hac vice -- which is rarely denied. Such a motion is needed for lawyers who have been licensed for less than three years. Kenneth Geller of Mayer, Brown, Rowe & Maw, an expert on Court procedure, says the justices are likely to allow Newdow to argue. "He's a lawyer, and he's handled this case up until now. He's not yet eligible to become a member of the Supreme Court Bar, so granting a motion pro hac vice makes sense." In past interviews, Newdow has indicated his eagerness to expose what he calls the "egregious" family law system in California that deprived him of custody. The Court's inclusion of the standing issue in its grant of review gives Newdow an opening to bring at least some aspects of that issue to the high court. Newdow first filed suit in March 2000 against the United States and Congress, as well as school officials. The suit was dismissed. But on appeal, a 9th Circuit panel in June 2002 ruled for Newdow, though it dismissed the United States and Congress as parties. The panel found that the Pledge, even if students are not required to recite it, has a "coercive effect." Reviewing the history of the law that placed the words in the Pledge, the panel also found that it had the purpose of advancing religion and had the effect of endorsing the existence of a "monotheistic God." After a national uproar, the panel in February amended its ruling to confine it to the school context -- not the wording of the Pledge in general. The school district, Newdow, and the Bush administration all appealed the decision, but the Court granted review in only the school district case, rejecting the others. It did, however, invite the solicitor general to give his views on the issue, all but assuring that the Bush administration would also participate in oral arguments. Though several justices in dicta over recent years have appeared to endorse the words "under God" in the Pledge, the school setting might make it a closer call because of peer pressure, the impressionability of students, and the fact that teachers -- who might otherwise object -- are required to lead the recitation of the Pledge. On June 26, 2003, the Becket Fund filed an amicus curiae brief (PDF format, 56K) with the U.S. Supreme Court on behalf of the Knights of Columbus, explaining why the phrase "under God" was added to the Pledge of Allegiance, and how that addition is constitutional. The brief explains that Congress added the language — at the height of the Cold War — in order to distinguish the American and Soviet views of human nature, and so of human freedom. The American view, reflected from the very birth of the Nation in the Declaration of Independence, is that people are "endowed by their Creator" — not by the State — with their rights. The State cannot take away rights that are not within its power to give in the first place; rather, its role is to protect and preserve those rights. The Soviet view was fundamentally different: the omnipotent State was the only source of rights, and since they were a gift of the State, the State could take them away at will. By inserting the phrase "under God" in the Pledge, Congress meant to reinforce this distinctively American political philosophy. As the brief argues, "If voluntarily reciting the Pledge is now suddenly unconstitutional because it refers to a nation 'under God,' then voluntarily reciting the Declaration of Independence, which similarly refers to the Creator as the source of our rights, must at least be suspect." The brief also explains that the consistent practice of the Executive Branch, especially in the speeches of Presidents since the founding, reflects a consistent interpretation of the Establishment Clause allowing invocations of God for this purpose. The brief notes that "with one exception (Washington's brief, second inaugural in 1793), every single presidential inaugural address includes references to God — whether as the source of rights, of blessing to the country, or of wisdom and guidance." The brief concludes with an appendix containing every inaugural address reference to God since 1789 (PDF format, 39K). On June 14, 2004, the U.S. Supreme Court reversed the Ninth Circuit's ruling that the Pledge of Allegiance is unconstitutional under the Establishment Clause of the First Amendment. Writing on behalf of the Court in Elk Grove Unified School Dist. v. Newdow, Justice Stevens concluded that Newdow lacked standing to bring the suit in federal court. "Chief Justice Rehnquist, in a concurring opinion, appropriately addressed the merits and concluded that the phrase 'under God' in the Pledge does not violate the Establishment Clause," said Kevin J. "Seamus" Hasson, President of The Becket Fund for Religious Liberty, which submitted an amicus (friend of the court) brief arguing that the Pledge is constitutional. "You win some, you lose some, and some get rained out," Mr. Hasson said. "It's a shame the Court couldn't unify around the same principle that has been unifying the rest of us since the Declaration of Independence: our rights are secure because they come from a higher authority than the state. Sooner or later, the Court will have to face up to that." The phrase "under God" is a statement of political philosophy reflecting the foundational premise upon which the nation was created, he said, and was added at the height of the Cold War to distinguish the nature of rights in America from that in Communist Russia. Articles & News Items
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