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REPORT FROM THE COURT: WILL THEY
HEDGE ON THE PLEDGE?
by Cary Shaw
[This
report was published by The Hour on 3/28/04]
"It's below the radar screen, isn't it?" asked a Supreme Court Justice. "Isn't the percentage of non-believers kind of minimal?"
"The Constitution doesn't state a percentage below which
people's rights can be ignored" answered Dr. Michael Newdow, at the
Supreme Court Oral Argument of the case involving teacher-led recitation of
the "under God" Pledge of Allegiance in the public schools.
"When the Supreme Court stood up for the rights of Jehovah's Witnesses,
and they were a smaller minority."
"Do we know what the vote was in Congress...to adopt the
'under God' phrase?" asked Chief Justice William Renquist, knowing the
answer.
"It was a hundred percent."
Confident that he had won his point, Renquist jumped in,
"That doesn't sound divisive."
"That's only because no atheist can get elected to public
office."
The courtroom was filled with laughter and applause.
Renquist was annoyed. "The Courtroom will be cleared if there is
any more clapping."
The outcome of this case is likely to be important in
Connecticut. Attorney General Blumenthal has asked the Supreme Court to
rule on the case to provide guidance. In post 9-11 fervor, Connecticut
adopted a new law requiring boards of education to adopt policies to assure
that schools provide time each day for reciting the Pledge of Allegiance.
State legislator Ken Bernhard said that he felt that "under God" did
not belong in the Pledge, but voted for the law because he was patriotic and
"couldn't rewrite the Pledge."
In Westport, Connecticut, parents testified before the Board of
Education that they did not want teachers setting time for the religiously
divisive Pledge. To have their children identified and differentiated
each day was not the solution they were looking for. A public forum in
Connecticut on "God in the Pledge: Does It Belong?" drew hundreds,
with clerics and the public answering in the negative.
The issue at stake is not whether God exists or whether free
individuals can make any kind of pledge they want, but rather whether the
government can take religious sides.
As Newdow explained, "Every school day the government asks
my daughter to stand, put her hand over her heart, and say that her father is
wrong."
For most people the Pledge case pits the desire to continue to
have "under God" in the Pledge, against the Constitutional
commitment that government stay out of religion. When I ask people their
attitudes about the Pledge, the biggest determinant of their response is not
their religion, but their age. The younger group has experienced the
Pledge in only its current form, and for them the question is "Why change
something I grew up with?". For the older group, there are many who
ask "The old way (one nation indivisible) was fine; why did they have to
change it?" and for some, the new practice has been adopted.
There is also the principle, known well by psychologists and
sales people, that we are highly motivated by feelings of loss, over things
that otherwise wouldn't move us as much. If someone woke us in the
middle of the night to tell us that if we went downstairs we'd get an extra
fifty dollars, we'd likely go back to sleep. If instead, they told us
that by going downstairs we could avoid having fifty dollars taken from us, we
would be roused and ready for action. In both cases the amount at stake
is the same. That is why the real estate agent says "I'd hate to
see you lose this house." So when we learn that we may lose
"under God" in the Pledge, we may be ready for action.
As mature adults we must go beyond these psychological
impulses, and determine what is best if we could start afresh. The
answer might be the same, or it might not.
On the Constitutional question, we know that the Bill of Rights
says that the government shall make no law respecting the establishment of
religion. That is why the lawyers for the Elk Grove Unified School
District (EGUSD) are busy claiming that "under God" is not
religious. They have concocted the idea that a personal pledge is only
an acknowledgement of history. Outside the Supreme Court, supporters of
"under God" didn't view it that way. They felt that it was
"fact" that God was our ruler, and showed no interest in freedom of
conscience or the Constitution. A TV crew filmed a leader who read from
scripture and explained that the head of the Elk Grove Unified School District
was a modern day Saint Paul who is leading us into religious righteousness.
When Dr. Newdow was asked by a Justice as to whether the phrase
"under God" was religious, he pointed to the writings of both
President Eisenhower, who had it inserted, and to President Bush, both of whom
described its importance in religious terms.
Back to our narrative of the Oral Argument before the Supreme
Court. Justices David Souter and John Paul Stevens quizzed the lawyers
for Elk Grove on their position on the issue of Dr. Newdow's standing.
"Standing" is the legal right to bring legal action on behalf of
one's self or one's child. "As the father of a child", said
Justice Souter, "I'd have an interest in seeing that my child is
protected from unconstitutional activities, wouldn't I?"
"Well, but the mother in this case has more responsibility
for the child's education."
Countered Souter, "Neither the father nor mother is the
decision maker for the school system".
When Dr. Newdow's turn came, the lengthy questioners were
Justices Sandra Day O'Connor and Anthony Kennedy. Justice O'Connor
wanted to know about the singing of "God Bless America", "In
God We Trust" on the currency, and how he would reconcile them.
"If the class had to rise as a group each day, put their
hands over their hearts, and recite these in unison, that would be similar.
If on the other hand, "God Bless America" was sung occasionally,
with other songs, that would be a different situation." said Newdow.
O'Connor and Newdow went round about this issue for quite a while.
O'Connor and Newdow went round about this issue for quite a while.
Justice Kennedy suggested that whatever was distinctly
religious about "under God" has been lost.
Dr. Newdow pointed out that "That is a view you might
take, and many were dismissive of the Jehovah's Witnesses' point of view, when
the Supreme Court stood up for them."
Justice Stevens asked a couple times about whether there was
any difference between the meaning of 'under God' when it was adopted in 1954
and its meaning today. I don't think anyone could figure out what he was
driving at, and he didn't say.
Justice Stevens also asked the lawyer for Elk Grove whether, if
'under God' was truly a non-religious phrase, this was taking God's name in
vain. This was a clear reference to a position taken by a large number
of Christian and Jewish religious leaders in an amicus curiae brief filed with
the court, supporting Newdow.
Opinions in the press room after Oral Argument were diverse.
One member of the press was loudly proclaiming that Elk Grove was correct,
while others shook their heads and calmly explained how easy it is to lead
/coerce young children.
What will the decision be? If we assume that the volume
of comment is indicative of final result, then I would guess that Newdow will
be found to have standing, but will lose the case on the Pledge. If the
justices are persuaded by the Newdow's answers, the Elk Grove District will
lose. If the supposed mathematics of the court are unchanged, then it
could still be 4-4 (Scalia recused), in which case the decision in the Ninth
Circuit (Western states) supporting Newdow against Elk Grove still stands, but
does not affect the rest of the U.S. One member of the press predicted
that the Court will vote 8-0 that Newdow has no standing, thus to avoid any
change in existing law or politics, but I don't think so.
When will the decision be announced? An experienced
member of the press told me before the hearing that if the Justices deny
Newdow standing, the result would likely be announced very soon, but if the
Justices want to issue opinions on 'under God', then they would likely not
finish until the last possible day of the session, July 2.
I have not covered many important points which can be found in
the briefs. To see them, google "pew pledge case".
What do the challengers want? Ellen Johnson, President of
American Atheists said, "We want non-belief respected and understood.
We want to be judged on character and deeds, not whether we agree with the
majority religion."
Just as American industry has benefitted from the free market
place, American religion has blossomed in the free market of ideas. As
James Madison noted in 1819, "the number, the industry, and the morality
of the priesthood and the devotion of the people have been manifestly
increased by the total separation of the Church from the State."
Additional websites dealing with the Pledge Case: www.supremecourtus.gov (Docket No. 02-1624) www.restorethepledge.org www.americanhumanist.org www.americanatheist.org
[http://www.humanisticjews.org/footerlinks.htm]
