No wonder Chief Justice William H. Rehnquist talks about quitting. He can't keep a lid on things at the Supreme Court. Former Justice Harry Blackmun is leaking secrets from the grave; Justice Antonin Scalia is corresponding with his detractors. And today, at oral argument in the Pledge of Allegiance case, there is an outburst of partisan clapping in the courtroom. Clapping. In church! I mean ... in court! An incensed Rehnquist barks that the "courtroom would be cleared" if he heard any more of this nefarious clapping. Stuff like this just doesn't happen at the Supreme Court.
But then everything about oral argument today in Elk Grove United School District v. Newdow is astonishing. Michael Newdow—the atheist challenging the constitutionality of the words "under God" in the pledge—shatters every one of the inviolate rules of Supreme Court advocacy: The doctor-slash-lawyer represents himself in a performance both passionate and personal. Never having argued a case at the high court, Newdow should have been a sloppy, overzealous mess. But this reviewer gives him five stars. He may still lose this appeal, but he absolutely won the day.
The constitutional challenge was brought on behalf of Newdow's daughter, who attends a public elementary school in the Elk Grove district in California. In July 2000, the district court found that the policy of teacher-led recitation of the pledge each morning does not violate the First Amendment's ban on state "establishment" of religion. But in June 2002, the 9th Circuit Court of Appeals reversed that decision, holding that Congress' 1954 grafting of the words "under God" onto it rendered the whole pledge unconstitutional. Dickering in the 9th Circuit resulted in a slightly amended decision, nevertheless holding that the school district's policy violates the Constitution. You probably recall that June day for the roaring of terrible roars and gnashing of terrible teeth it engendered. One of the thorns in this case is that supporters of the pledge say the words "under God" are political, historical, ceremonial—anything but religious. But if the protests and demonstrations and national polls reveal anything about the merits of this case, it's that the words "under God" really are about the Jesus-Church-Prayer type of God for most Americans.
The first attorney to speak is Terrence J. Cassidy, representing the school district. Most of his time goes to clarifying whether Michael Newdow even has legal "standing" to bring this case. The issue—which, if decided against him could keep the court from even considering the pledge issue—is whether Newdow has a legal claim. His daughter's mother (a born-again Christian) has primary legal custody, and therefore only she has the right to direct and control the child's educational and religious upbringing. And mom has no problem with God.
Justice Anthony Kennedy seems to have a problem writing Newdow completely out of the legal picture, worrying that the state is "tipping the balance" against this father. Justice David Souter wonders whether, "even if the mother has the right to cast the final decision," Newdow "nonetheless has an interest as a father." Cassidy says the school district must rely on only a "single decision-maker" to function. The implications of spontaneously inventing standing for Newdow aren't addressed much today: Is the court poised to overturn the whole custodial apple cart to create some new federal constitutional custody rule?
Solicitor General Ted Olson has 15 minutes to argue on behalf of the pledge. Olson reminds the justices that a lower court thought Newdow's decision to bring this lawsuit without consulting his child's mother was "unconscionable" and that it reflects Newdow's failure to really consider the best interests of his daughter.
Having heard almost 20 minutes on the standing issue, the chief justice gathers himself up and reminds everyone that "the merits have nothing to do with the standing issue" (or better, "get on with the pledge stuff"). Olson segues smoothly to his main argument: The pledge is about education, not religion, and he tosses out a zinger suggesting that for all Newdow's alleged concern for the effects of religious coercion on his daughter, he shows a lack of concern about thrusting her into "the vortex" of this dispute.
Olson says that the words "under God" reflect "an acknowledgment of the religious basis of the framers of the Constitution." Justice Ruth Bader Ginsburg asks, "Why not have a choice? Children who want to say it can say it and those who don't, don't have to?" Olson answers that under West Virginia v. Barnette—the 1943 case saying Jehovah's Witnesses did not have to salute the flag—this is already the law. He adds that Thomas Jefferson took out a provision in Virginia's Bill of Rights that would have acknowledged the "Holy Author Jesus Christ," precisely because it would have offended "Jews, Hindus, and infidels."
Michael Newdow gets up, and stuffy reporters like me, who cringe at zealots who insist on being their own oral advocates and wince at the brashness of a man who actually asked for (and got) a Scalia recusal, are rocked back on our heels. Newdow opens with the mental picture of his daughter (not allowed to attend today) with a "hand over her heart, saying her father is wrong."
Kennedy wants to address the standing problem. He says, "You are asking us to take the extraordinary, breathtaking power to declare something unconstitutional," adding that if he asks the court to use that power, he should personally take on the consequences. But, worries Kennedy: "Your daughter bears the blame. She will face the public outcry." Newdow affirms that he has standing to bring this case based on specific, individualized harm to him, not to her.
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.
This case is a mess, and not just because of the underlying custody issue, and not just because of the 11,000 outrageous "tests" the court has cooked up for Establishment Clause cases, and not just because of the serious possibility that it all ends in a 4-4 tie. The case is a mess because, whatever you may think about God or the pledge, if you really apply the case law and really think "God" means "God," then Newdow is right. But Newdow can't be right. Can he?