"Under God"

[strandinthewind]

From the NY Times (www.nytimes.com)

Atheist Presents Case for Taking God From Pledge
By LINDA GREENHOUSE

Published: March 25, 2004

WASHINGTON, March 24 — Michael A. Newdow stood before the justices of the Supreme Court on Wednesday, pointed to one of the courtroom's two American flags and declared: "I am an atheist. I don't believe in God."

With passion and precision, he then proceeded to argue his own case for why the daily recitation of the Pledge of Allegiance in his daughter's public school classroom violates the Constitution as long as the pledge contains the words "under God."

Dr. Newdow, a nonpracticing lawyer who makes his living as an emergency room doctor, may not win his case. In fact, justices across the ideological spectrum appeared to be searching for reasons he should lose, either on jurisdictional grounds or on the merits. But no one who managed to get a seat in the courtroom is likely ever to forget his spell-binding performance.

That includes the justices, whom Dr. Newdow engaged in repartee that, while never disrespectful, bore a closer resemblance to dinner-table one-upmanship than to formal courtroom discourse. For example, when Dr. Newdow described "under God" as a divisive addition to the pledge, Chief Justice William H. Rehnquist asked him what the vote in Congress had been 50 years ago when the phrase was inserted.

The vote was unanimous, Dr. Newdow said.

"Well, that doesn't sound divisive," the chief justice observed.

Dr. Newdow shot back, "That's only because no atheist can get elected to public office."

The courtroom audience broke into applause, an exceedingly rare event that left the chief justice temporarily nonplussed. He appeared to collect himself for a moment, and then sternly warned the audience that the courtroom would be cleared "if there's any more clapping."

Earlier, Dr. Newdow responded to Justice Stephen G. Breyer's suggestion that "under God" had acquired such a broad meaning and "civic context" that "it's meant to include virtually everybody, and the few whom it doesn't include don't have to take the pledge."

"I don't think that I can include `under God' to mean `no God,' " Dr. Newdow replied. "I deny the existence of God." He added, "Government needs to stay out of this business altogether."

The current Pledge of Allegiance was defended by Solicitor General Theodore B. Olson and by Terence J. Cassidy, the lawyer for the Elk Grove school district in California where Dr. Newdow's daughter attends elementary school.

Both lawyers were appealing a decision won by Dr. Newdow in the United States Court of Appeals for the Ninth Circuit, in San Francisco. That court ruled last year that the addition of "under God" turned the pledge into a "profession of religious belief" and made it constitutionally unsuitable for daily recitation in the public schools. Congress added the phrase at the height of the cold war in an effort to distinguish the American system from "Godless Communism."

One justice, Antonin Scalia, was sharply critical of the appeals court's ruling in a speech he gave before the case reached the Supreme Court. As a result, Dr. Newdow asked Justice Scalia to recuse himself, and the justice complied, without comment, when the court accepted the case in October. His absence raises the possibility of a 4-to-4 tie, which would automatically affirm the Ninth Circuit's ruling without setting a binding precedent elsewhere.

Solicitor General Olson told the justices that the appeals court misunderstood the pledge. The phrase "under God" did not place the pledge in the category of religious expressions that the Supreme Court has found unconstitutional, he said, for example "state-sponsored prayers, religious rituals or ceremonies, or the requirement of teaching or not teaching a religious doctrine."

Rather, Mr. Olson said, "under God" was one of various "civic and ceremonial acknowledgments of the indisputable historical fact that caused the framers of our Constitution and the signers of the Declaration of Independence to say that they had the right to revolt and start a new country." He said the framers believed "that God gave them the right to declare their independence when the king has not been living up to the unalienable principles given to them by God."

That description of the pledge appeared to gain little traction as the argument proceeded. "I do assume that if you read the pledge carefully, the reference to `under God' means something more than a mere description of how somebody else once thought," Justice David H. Souter said to Dr. Newdow moments later.

Justice Souter's question for Dr. Newdow was whether, even assuming that schoolchildren were being asked "as a technical matter" to make a personal religious affirmation, the recitation had become in practice "so tepid, so diluted, so far, let's say, from a compulsory prayer that in fact it should be, in effect, beneath the constitutional radar." Was it the case, Justice Souter asked, that by "the way we live and think and work in schools and in civic society in which the pledge is made, that whatever is distinctively religious as an affirmation is simply lost?"

Dr. Newdow replied: "That is a view that you may choose to take and the majority of Americans may choose to take. But it's not the view I take, and when I see the flag and I think of pledging allegiance, it's like I'm getting slapped in the face every time, bam, you know, `this is a nation under God, your religious belief system is wrong.' "

Before the justices can decide the merits of the case, Elk Grove Unified School District v. Newdow, No. 02-1624, they must resolve doubts about whether Dr. Newdow had standing to bring his lawsuit, either on his own behalf or on behalf of his daughter, who is now 9 years old. A court does not have jurisdiction in the absence of a plaintiff with standing.

Dr. Newdow was never married to the child's mother, Sandra Banning, who has custody and has told the court in a brief filed by Kenneth W. Starr, the former independent counsel, that she is giving her daughter a religious upbringing and wants her to say the pledge with "under God." The justices spent about half of the one-hour argument posing questions about standing and sparring with Dr. Newdow on the subject.

It remained unclear whether Dr. Newdow persuaded them, but he was obviously prepared for the argument. He told the justices, "I am saying I as her father have a right to know that when she goes into the public schools she's not going to be told every morning to stand up, put her hand over her heart, and say your father is wrong, which is what she's told every morning."

"Well, she does have a right not to participate," Justice Sandra Day O'Connor observed.

In 1943, 11 years before Congress added "under God," the court ruled that no one could be compelled to say the Pledge of Allegiance. That case was brought by Jehovah's Witnesses, whose religion forbids saluting the flag.

Dr. Newdow said opting out was a "huge imposition to put on a small child."

He continued: "Government is doing this to my child. They're putting her in a milieu where she says, `Hey, the government is saying that there is a God and my dad says no,' and that's an injury to me."

Dr. Newdow, 50, often spoke very rapidly but never appeared to lose his footing during the 30 minutes the court gave him. He managed a trick that far more experienced lawyers rarely accomplish: to bring the argument to a symmetrical and seemingly unhurried ending just as the red light comes on.

"There's a principle here," he told the justices in his closing moments, "and I'm hoping the court will uphold this principle so that we can finally go back and have every American want to stand up, face the flag, place their hand over their heart and pledge to one nation, indivisible, not divided by religion, with liberty and justice for all."

[strandinthewind]

This is such an interesting legal case to me. Mr. Newdow legally has the upper hand because the First Amendment of the Cost. prohibits the Fed. Govt. from establish a religion. Here, the phrase "under God" was added in the 1950's for that express purpose. It was added to assert that America is a society based on God, presumably the Christian God. Interestingly, the word "God" was purposefully left out of the Const. for that exact reason.

Then again, come on, is it really that horrible of a thing to say under God? Is that really establishing a religion?

My personal feeling is it should not be in the POA. I think it is a lie in that clearly we are not "one nation under God" and I think the Govt. should never really address religion in this way.

Fire Away!

[gldstwmn]

Some observations: A doctor/lawyer? You're kidding me with this stuff, right? Did you see Catch Me If You Can?
So "Fat Tony" Scalia will recuse himself from this case but not from the one with his friend "Uncle Dick" Cheney vs. The Sierra Club?
Dr. Newdow has an excellent point. However, I think his chances of winning this are slim and none. Kudos to him for getting it heard, at least.

[strandinthewind]

I know - poor Scalia "Quack Quack" - what a jerk. Scalia has a history of this as set forth here http://ethics.surfwax.com/files/Legal_Ethics.html

I think the Court will uphold the phrase in the POA and note a child can opt out. This is consistent with the prior case mentioned where the Court found no one can be compelled to say the POA. So, the forcing of religion down the throats of the 30 million or so unwilling American Atheists will prevail. Again, this is just one more step in the attempt to make everyone in America think one way and that one way is the Christian way. Note: I think Christianity is great and that everyone should be one to experience that greatness. However, I fully recognize that my way is not the law and nor should it be in a free society that is not and was never intended to be a theocracy. Yet, the fundamentalist Christians will never see that distinction and will continue to spin this as an affront to God Himself.

Also and interestingly (at least to me ) - I thought about getting my JD/MD but was unwilling to put in the seven to 10 or so years required So, I spent three years and got my JD (Juris Doctorate).

[dissention]

It shouldn't be in the POA because of the simple fact that this country is not made up of people who all believe in God. And there is a seperation of church and state; the addition of "under God" in the fifties was absurd, IMO.

Scalia? Ugh. He needs to go away.

[darklinensuit]

I believe in G-d but support the doctor 100%. No child should have to be different every day because of religion or lack thereof. Shame on any school that would expect a little kid to do that.
When I taught elementary we skipped the Pledges, including the one to the TX flag. (I'm not making this up.) I'm all for promoting good citizenship and respect for the flag, but WTF does this particular practice add to a child's character and education? I said the Pledge as a child, and I can't say that it did more for me than a current events lesson would have, for example. People want to pay me to make kids stand at attention to recite the same words every day? Easy money, but I'll pass.

- Jake

[estranged4life]

being a non-religious person, the words "Under God" do not offend me...

I think if they are alterate the pledge, the words "Under God" should be replaced with the words "In Greed We Lust".

As for the line "With liberty & justice for all...", Yeah...right that seems to apply only if you are wealthy.

Brian j.

[dissention]

Originally posted by estranged4life
I think if they are alterate the pledge, the words "Under God" should be replaced with the words "In Greed We Lust".

As for the line "With liberty & justice for all...", Yeah...right that seems to apply only if you are wealthy.

Brian j.

I knew there was a reason I liked you, Brian.

[ryan8472]

At my school, they have someone recite the pledge over the intercom, and we are forced to stand and say it with the guy. Well, we arent forced to recite it, but the teachers always get mad if you don't. Now I consider myself to be fairly patriotic, but I don't feel that we should have to say this if we don't want to. I do agree that the 'under god' part is unneccesary though.

[GardenStateGirlie]

When I went to high school, we said the pledge every morning. There was one particular kid I graduated with that was raised as a Jehovah. Whenever we had any activities related to holidays or things of that nature, he would not participate...same thing goes for soluting the flag. He would stand there with his head bowed down and his arms behind his back and that was fine for him and his family as well. All the while, he was respectful. So, IMO, it can be done in a tactful manner. She can still rise for the pledge but it doesn't mean she has to say it. She and her father may not believe in God but I would hope they believe in our country or i'd assume they'd be living elsewhere. JMO.

As far as having added that to the pledge in the 50s, there has always been a fine line between seperation of church and state which IMO, is ALWAYS towed and skewed.

[dissention]

Originally posted by GardenStateGirlie
When I went to high school, we said the pledge every morning. There was one particular kid I graduated with that was raised as a Jehovah. Whenever we had any activities related to holidays or things of that nature, he would not participate...same thing goes for soluting the flag. He would stand there with his head bowed down and his arms behind his back and that was fine for him and his family as well. All the while, he was respectful. So, IMO, it can be done in a tactful manner. She can still rise for the pledge but it doesn't mean she has to say it. She and her father may not believe in God but I would hope they believe in our country or i'd assume they'd be living elsewhere. JMO.

As far as having added that to the pledge in the 50s, there has always been a fine line between seperation of church and state which IMO, is ALWAYS towed and skewed.

Yeah, but the funny thing is that in public schools, you're not allowed to put up pictures of the baby Jesus or any kind of religious symbol around Christmastime, yet it's okay to salute a flag and it's nation "under God."

It smacks of hypocrisy, negates common sense, and neither should be allowed.

[GardenStateGirlie]

Originally posted by dissention
It smacks of hypocrisy, negates common sense, and neither should be allowed.

I never said that it didn't. However, what i'm saying is this: if we have to cater to one, we have to cater to all. The next thing you know we'll be making like the South Park episode with Philip Glass doing the school play for the kids. Perhaps I need to re-read the article but in no way do I see signs of the child being FORCED into saying "one nation under God." She can stand there and be fine with it. To me, it sounds like the mother wants her to say it and the father does not. Sounds like more of a parental/custody type thing to get back at one another than an actual genuine concern for whether or not she's saying the word "God." If "God" is the "worse" thing that every comes out of that childs mouth, he should be so lucky.

[strandinthewind]

Originally posted by GardenStateGirlie
. . . If "God" is the "worse" thing that every comes out of that childs mouth, he should be so lucky.

touche' - esp. in this day and age.

The argument against choosing not to say the "under God" part is complicated. As ryan8472 mentioned, there is pressure to go against what you bleive and say it anyway in order not to anger the teacher. Also, peer pressure amongst kids can be brutal, esp. in very religious areas, like the rural South. So, I think from that perspective for some there really is no option not to say it. That is wrong IMO.

The question is does it establish a religion? As noted by the Court, the term God could mean anything or any God, not just the Judeo Christian God, which clearly was its original intent.

I think it ought to be removed since the godless ways of Commuinism are no longer a threat. I mean if that was the sole purpose of putting it there - then it has served its purpose.

I find this debate fascinating

[dissention]

Originally posted by GardenStateGirlie
I never said that it didn't. However, what i'm saying is this: if we have to cater to one, we have to cater to all. The next thing you know we'll be making like the South Park episode with Philip Glass doing the school play for the kids. Perhaps I need to re-read the article but in no way do I see signs of the child being FORCED into saying "one nation under God." She can stand there and be fine with it. To me, it sounds like the mother wants her to say it and the father does not. Sounds like more of a parental/custody type thing to get back at one another than an actual genuine concern for whether or not she's saying the word "God." If "God" is the "worse" thing that every comes out of that childs mouth, he should be so lucky.

She doesn't have to say it, but the point is that in a public school, she shouldn't be put in the position of even having to say it or not. It should be left out, plain and simple. If public schools want to include "under God" in any of it's activities, they should expect these type of things to happen. What would be the difference between saying "under God" and a teacher asking her class to say a religious prayer with her? They aren't being forced, but the teacher is suggesting it. What if she asked them to say a Jewish, Buddhist, or Islamic prayer or asked them to call their God out? There would be quite an uproar. Therefore, leave God home. Don't trot him out at the taxpayers expense.

[Races Are Run]

Originally posted by dissention
She doesn't have to say it, but the point is that in a public school, she shouldn't be put in the position of even having to say it or not. It should be left out, plain and simple. If public schools want to include "under God" in any of it's activities, they should expect these type of things to happen. What would be the difference between saying "under God" and a teacher asking her class to say a religious prayer with her? They aren't being forced, but the teacher is suggesting it. What if she asked them to say a Jewish, Buddhist, or Islamic prayer or asked them to call their God out? There would be quite an uproar. Therefore, leave God home. Don't trot him out at the taxpayers expense.

NOt only that, but peer pressure is outta control at young ages. How many elementary school kids do you think are going to say "I'm not going to say the pledge, I'll just stand in protest."

Ya, right!

I can't even believe that this is up for debate. Anyone with a second grade education (how ironic) can figure out that this is a no brainer. Religion should not be in schools, period. The only exception is for historical education (the crusades, the inquisition, the holocaust, the Taliban, the Infidata).....

Well...... I guess religion doesn't have a great historical record.

Although without religion, we wouldn't have all the beautiful cathedrals and antiquities. But, I think I'd rather have peace and understanding than a bunch of buildings.