"God save the United
States and this honorable court."
With that prayer
opening the U.S. Supreme Court, the justices gathered to hear Dr. Michael
Newdow, a physician and a lawyer, argue that his daughter ought not be
subjected to beginning her school day by reciting the Pledge of Allegiance
with the phrase, "one nation under God."
He argued that the
phrase "under God" which schools ask children to repeat, promotes a
religious belief that God exists and that ours is a nation "under" Him -
which, as an atheist, he profoundly disagrees with.
Newdow, who took the
unusual step of defending his own case before the Court, argued, "I am an
atheist. I don't believe in God. And every school morning my child is asked
to stand up, face that flag, put her hand over her heart, and say her father
Justice Sandra Day O'Connor
interrupted, "Well, she does have a right not to participate."
Newdow cited a case in which
the Court declared prayer in school as unconstitutional, saying, "under Lee
v. Weisman she's clearly coerced to participate."
O'Connor interjected, "That
was a prayer."
Newdow: "Well, I'm not sure
this isn't a prayer." He noted that President Bush said that in asking
citizens to pledge allegiance to "one nation under God," they are
participating "in an important American tradition of humbly seeking the
wisdom and blessing..."
However, Solicitor General
Theodore Olson argued that the phrase is simply "an acknowledgment of the
religious basis of the framers of the Constitution, who believed not only
that the right to revolt, but that the right to vest power in the people to
create government came as a result of religious principles."
As the Declaration of
Independence says, "All men are created equal, that they are endowed by
their Creator with certain unalienable rights." George Washington wrote to
his Continental Army, "The fate of unborn millions will now depend, under
God, on the courage and conduct of this army."
Abraham Lincoln, in his
Gettysburg Address, declared "that this Nation, under God, shall have a new
birth of freedom." Our national motto, minted on coins for a century is "in
God we trust."
America has always perceived
itself as being "under God." It is a simple statement of historical fact.
O'Connor asked Newdow, "Do you
have a problem with `In God we trust,' on coins?"
"Only if my daughter is forced
to say, `In God We Trust,'" the father replied gamely.
Seven of the eight
justices appeared skeptical. Justice Ruth Bader Ginsburg, a liberal,
commented: "It's two words sandwiched in the middle of something, and the
child doesn't have to say those words."
Justice David Souter,
argued that "As a religious affirmation, it is so tepid, so diluted, so far
from a compulsory prayer that in fact it should be, in effect, beneath the
Newdow disagreed: "For
the government to come in and say, 'We've decided for you this is
inconsequential or unimportant is an arrogant pretension."
Souter replied that the
government is not "defining this as inconsequential for you." Rather in our
secular society, "whatever is distinctively religious as an affirmation is
"That is a view that you may choose to take and the majority of Americans
may choose to take. But when I see the flag and I think of pledging
allegiance, it's like I'm getting slapped in the face."
Breyer argued that the Pledge "serves a purpose of unification at the price
of offending a small number of people like you."
William Rehnquist asked Newdow what the vote was of Congress to adopt the
"under God" phrase.
apparently unanimous," the doctor replied.
doesn't sound divisive," proclaimed the Chief Justice.
because no atheist can get elected to public office!" he fired back,
sparking laughter and a rare burst of applause, infuriating Rehnquist.
adept as Newdow was on his feet, he's personally inept. He never did marry
his daughter's mother, Sandra Banning. California courts have given her, not
him, the right to make decisions about her upbringing. Neither Ms. Banning
nor her daughter object to saying the Pledge. And, as her brief in the case
put it, "Mr. Newdow is not able to co-parent as evidenced by his decision to
involve the child in a lawsuit without Ms. Banning's consent."
An AP poll
found nine of ten Americans favor retaining the "under God" phrase. I
predict the Supreme Court will agree.