marinemom
03-24-04, 05:57 AM
A Big Case Over Two Little Words
Pledge Challenge Centers On 'Under God' Phrase
By Charles Lane
Washington Post Staff Writer
Wednesday, March 24, 2004; Page A05
When Michael A. Newdow urges the Supreme Court today to ban the mandatory recitation of the Pledge of Allegiance in public schools, he will be up against not only the Elk Grove (Calif.) Unified School District, where his daughter attends classes.
Newdow will also be battling the school district's supporters: the Bush administration, the Republican and Democratic leaders of Congress, dozens of members of both the House and the Senate, the governments of all 50 states, the National Education Association, and even a group billed as "Grassfire.net and Hundreds of Thousands of Americans."
But the California atheist does have one advantage -- consistency.
An unabashed proponent of extirpating all religious references from public life, Newdow has no problem standing before the court and urging it to edit "under God" out of the pledge, even if that logic, extended, would probably doom "In God We Trust" on currency and even the cry of "God save the United States and this honorable court," with which the Supreme Court commences its work each day.
His opponents, by contrast, must negotiate a minefield of Supreme Court precedents that have interpreted the constitutional prohibition on the official establishment of religion to mean that government must stay neutral among religious beliefs, avoid actions that have the purpose or effect of endorsing any religious belief, and refrain from coercing individual citizens to express a religious belief.
It helps their cause that many justices have observed in passing that the pledge is probably constitutional, but that is hardly conclusive.
Thus, to some extent, legal analysts say, the pro-pledge case is a result in search of a legal rationale.
"If you look at the logic of the cases writ large, take their logical principles and try to apply them in the abstract, then Newdow wins, because the pledge seems to endorse religion in some measure," said Eugene Volokh, a professor of constitutional law at the University of California at Los Angeles. "The rationale [for the pledge] is pretty clear -- it's the 'no extirpation' rationale. . . . But the question is, how do you translate that into a legal rule? And the answer is, it'll be quite a challenge for the court to do."
In 1992, for example, the court ruled 5 to 4 that a rabbi's nonsectarian invocation at a public high school graduation ceremony violated the establishment clause of the First Amendment because nonreligious students might feel psychological pressure to join in, even if they were not formally required to do so.
The San Francisco-based U.S. Court of Appeals for the 9th Circuit cited that case, Lee v. Weisman, in its decision last year banning the recitation of the pledge in the public schools of nine western states.
Though students have always been free to remain silent during the recitation of the pledge, the 9th Circuit court ruled that the mere fact that Newdow's daughter in elementary school had to stand and listen to "under God" violated his right to instruct her in religious matters without state interference.
The 9th Circuit court noted that the pledge was rewritten by Congress in 1954 to include "under God" as a way to contrast the United States with the officially atheistic Soviet Union, making it a state-sponsored affirmation of monotheism.
The pledge, Newdow says in his brief, is "the majority using the machinery of the state to enforce its preferred religious orthodoxy." Among his supporters are Americans United for Separation of Church and State and the American Civil Liberties Union.
By contrast, defenders of the pledge's current wording must explain to the court why it should not apply the principles of cases such as Lee v. Weisman.
Each of the 33 briefs filed in support of the pledge -- one by the Elk Grove Unified School District, which is near Sacramento, and 32 by friends of the court -- makes that point in a different way. Some, such as the brief from the Catholic League, urge the court to embrace the fact that the Founders saw Americans' rights as an endowment from God. The pledge, the Catholic League brief says, "encourages continuing recognition of the idea of God-given freedom."
But for the most part, the briefs steer in a relatively secular direction, calling the pledge a patriotic exercise, not a religious one.
The reference to God in the pledge is "ceremonial," Elk Grove argues in its brief, and the pledge "is simply a patriotic expression, that includes a reference to God, which reflects a long standing philosophy of government."
In a similar vein, the Bush administration's brief refers to "under God" as a permissible acknowledgement of "the role that faith in God has played in the formation, political foundation, and continuing development of this Country."
The brief goes on to cite statements in opinions by nine justices in which they expressed the belief that "under God" is constitutional.
Newdow's opponents and others also give the court another option: Forget about "under God" and throw the case out on the ground that Newdow, who never married his daughter's mother and has no legal custody over her, lacks standing to sue in the first place.
"In these circumstances," says a brief submitted by former California Supreme Court justice Joseph R. Grodin, in support of neither party, "the Court should vacate the Ninth Circuit's judgment" and send the case back to the California Supreme Court for it to settle the question of Newdow's standing -- a process that could take months or years.
Perhaps Mr. Newdow needs to take a look at his money.....and refuse to accept payments or spend it.
Pledge Challenge Centers On 'Under God' Phrase
By Charles Lane
Washington Post Staff Writer
Wednesday, March 24, 2004; Page A05
When Michael A. Newdow urges the Supreme Court today to ban the mandatory recitation of the Pledge of Allegiance in public schools, he will be up against not only the Elk Grove (Calif.) Unified School District, where his daughter attends classes.
Newdow will also be battling the school district's supporters: the Bush administration, the Republican and Democratic leaders of Congress, dozens of members of both the House and the Senate, the governments of all 50 states, the National Education Association, and even a group billed as "Grassfire.net and Hundreds of Thousands of Americans."
But the California atheist does have one advantage -- consistency.
An unabashed proponent of extirpating all religious references from public life, Newdow has no problem standing before the court and urging it to edit "under God" out of the pledge, even if that logic, extended, would probably doom "In God We Trust" on currency and even the cry of "God save the United States and this honorable court," with which the Supreme Court commences its work each day.
His opponents, by contrast, must negotiate a minefield of Supreme Court precedents that have interpreted the constitutional prohibition on the official establishment of religion to mean that government must stay neutral among religious beliefs, avoid actions that have the purpose or effect of endorsing any religious belief, and refrain from coercing individual citizens to express a religious belief.
It helps their cause that many justices have observed in passing that the pledge is probably constitutional, but that is hardly conclusive.
Thus, to some extent, legal analysts say, the pro-pledge case is a result in search of a legal rationale.
"If you look at the logic of the cases writ large, take their logical principles and try to apply them in the abstract, then Newdow wins, because the pledge seems to endorse religion in some measure," said Eugene Volokh, a professor of constitutional law at the University of California at Los Angeles. "The rationale [for the pledge] is pretty clear -- it's the 'no extirpation' rationale. . . . But the question is, how do you translate that into a legal rule? And the answer is, it'll be quite a challenge for the court to do."
In 1992, for example, the court ruled 5 to 4 that a rabbi's nonsectarian invocation at a public high school graduation ceremony violated the establishment clause of the First Amendment because nonreligious students might feel psychological pressure to join in, even if they were not formally required to do so.
The San Francisco-based U.S. Court of Appeals for the 9th Circuit cited that case, Lee v. Weisman, in its decision last year banning the recitation of the pledge in the public schools of nine western states.
Though students have always been free to remain silent during the recitation of the pledge, the 9th Circuit court ruled that the mere fact that Newdow's daughter in elementary school had to stand and listen to "under God" violated his right to instruct her in religious matters without state interference.
The 9th Circuit court noted that the pledge was rewritten by Congress in 1954 to include "under God" as a way to contrast the United States with the officially atheistic Soviet Union, making it a state-sponsored affirmation of monotheism.
The pledge, Newdow says in his brief, is "the majority using the machinery of the state to enforce its preferred religious orthodoxy." Among his supporters are Americans United for Separation of Church and State and the American Civil Liberties Union.
By contrast, defenders of the pledge's current wording must explain to the court why it should not apply the principles of cases such as Lee v. Weisman.
Each of the 33 briefs filed in support of the pledge -- one by the Elk Grove Unified School District, which is near Sacramento, and 32 by friends of the court -- makes that point in a different way. Some, such as the brief from the Catholic League, urge the court to embrace the fact that the Founders saw Americans' rights as an endowment from God. The pledge, the Catholic League brief says, "encourages continuing recognition of the idea of God-given freedom."
But for the most part, the briefs steer in a relatively secular direction, calling the pledge a patriotic exercise, not a religious one.
The reference to God in the pledge is "ceremonial," Elk Grove argues in its brief, and the pledge "is simply a patriotic expression, that includes a reference to God, which reflects a long standing philosophy of government."
In a similar vein, the Bush administration's brief refers to "under God" as a permissible acknowledgement of "the role that faith in God has played in the formation, political foundation, and continuing development of this Country."
The brief goes on to cite statements in opinions by nine justices in which they expressed the belief that "under God" is constitutional.
Newdow's opponents and others also give the court another option: Forget about "under God" and throw the case out on the ground that Newdow, who never married his daughter's mother and has no legal custody over her, lacks standing to sue in the first place.
"In these circumstances," says a brief submitted by former California Supreme Court justice Joseph R. Grodin, in support of neither party, "the Court should vacate the Ninth Circuit's judgment" and send the case back to the California Supreme Court for it to settle the question of Newdow's standing -- a process that could take months or years.
Perhaps Mr. Newdow needs to take a look at his money.....and refuse to accept payments or spend it.