O'Connor reminds Newdow that his daughter has a right not to pledge. He cites to the Supreme Court decision in the 1992 case Lee v. Weisman that found nonsectarian prayers at a public school graduation ceremony violated the Constitution because they coerce student participation.
"But that was a prayer!" snaps O'Connor.
Newdow replies by quoting a 2002 letter from President Bush to a Buddhist leader (appended to this amicus brief): "When we pledge allegiance to One Nation under God, our citizens participate in an important American tradition of humbly seeking the wisdom and blessing of Divine Providence."
"That does not constitute prayer," says O'Connor.
"President Bush says it is," says Newdow. Folks laugh.
The chief justice then reads from the pledge, insisting "it doesn't sound anything like a prayer." And O'Connor—as she so often does—voices the underlying pragmatic concern: "There are so many references to God in the daily lives of this country." She mentions the invocation before court opens each day, and the words "In God We Trust" on currency. Newdow says that no one coerces his daughter to say those things. Kennedy and O'Connor remind him once again that his daughter is not required to say the pledge, and that the pledge is not a prayer. Newdow again tells them that a 6- or 7-year-old child is different than an adult, and that the Establishment Clause isn't violated only by prayer. It can be violated with postings of the Ten Commandments.
Justice Stephen Breyer argues that neutral words like "Supreme Being" or "God" attempt to reach out and include believers in everything, and that, "maybe it even includes you." Newdow says he can't see how "under God" could mean "no God," and that the "government needs to stay out of this business altogether." Several times today Newdow seems poised to call an argument or question "stupid." You can almost feel him biting his tongue, then substituting "questionable."
Souter agrees that the pledge is an "affirmation," but wonders whether it's "so tepid, so diluted ... that it should be under the constitutional radar." He uses that wonderful phrase "ceremonial deism," a legal term of art for the "God of the Hallmark cards"—utterly devoid of spiritual significance. He says that whatever religious significance there is to "under God" in the pledge is lost, or "close to disappearing."
Newdow disagrees; for him, hearing it is like "getting slapped in the face every time." He offers this burst of fatherly pride to his daughter: "Go to church with your mother. I love the idea of her being exposed to everything. But I want my religion to be taken into account." For a guy trying singlehandedly to dismantle an American institution, it sounds almost reasonable.
Breyer says that the pledge serves the purpose of unification at the price of offending only a few. Newdow says that "for 62 years [before it was amended in 1954] the pledge did serve the purpose of unification ... it got us through two world wars and a depression." But he adds that the idea that if adding in "under God" is not divisive, why did the country go "berserk" when the 9th Circuit opinion came down? Rehnquist asks what the vote was in 1954, when it was amended. Newdow says it was unanimous. Rehnquist queries how that reveals divisiveness.
Newdow: "It doesn't sound divisive? That's only because no atheist can get elected to Congress." Here is where people actually applaud like it's a ball game. And here is where Rehnquist, who may be feeling the sting of Newdow's comeback, threatens to clear the court. Stevens asks Newdow the same question he asked Olson: whether the words "under God" have the same meaning today as they did when the pledge was amended. Newdow replies that 99 out of 99 senators stopped everything to stand on the steps of the Capitol when the 9th Circuit decision came down. He adds that the words "under God" reference the Christian God, observing that at the ceremony celebrating the addition of the words to the pledge, "Onward Christian Soldiers" was played. He closes with the words of the pledge, as originally written, without the words "under God." And I confess, it sounds pretty good.