Interview: Newdow's fight to remove god from government
Angela N. White
Issue date: 11/25/03 Section: Features
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Michael Newdow filed the case in objection to a Sacramento, California school district policy that requires his nine-year-old daughter to listen to teachers leading other students in reciting the Pledge.
The three-judge Ninth Circuit panel narrowed its decision in February solely to reciting the Pledge in a school setting. The Supreme Court further reworded the issue as whether the school policy "requires teachers to lead willing students in reciting the Pledge."
Newdow is a doctor and attorney. He graduated from UCLA School of Medicine and the University of Michigan Law School. He passed the California bar last July - a year after arguing his case before the Ninth Circuit.
Newdow hopes to argue his case before the Supreme Court as well. But the Court must approve such a request, for Newdow has been licensed as a lawyer for less than three years.
White: Let's start at the beginning: What prompted you to bring this case concerning the Pledge to court?
Newdow: It's a violation of the Establishment Clause. I thought it was wrong, and I thought I would make it right.
White: The Ninth Circuit ruled that a public school teacher leading students in actively swearing allegiance through the current form of the Pledge violates the First Amendment Establishment Clause. However, others argue that not allowing students to recite the Pledge would violate their First Amendment right to free exercise of religion. How would you reconcile this apparent conflict?
Newdow: I don't think there's any conflict at all. The government is not allowed to lead people in prayer. That's what they're doing. Individuals can do anything they want any time they want.
White: The court used the coercion test - as coined in a Supreme Court [case] - when it made its decision. "Primary and secondary school children may not be placed in the dilemma of either participating in a religious ceremony or protesting," [the Ninth Circuit] stated, noting the impressionability and vulnerability of young children.
Is the state effectively indoctrinating children even if it doesn't require their active participation in the Pledge?
Newdow: Sure. They're all sitting there - everyone's there - and the teacher is leading the whole class to say there is a god.
White: Originally, the Ninth Circuit decision spanned a much wider array of people who would cite the Pledge, but was later amended to only include schoolchildren. This reportedly led to your appeal to the Supreme Court. Do you feel that age and vulnerability may not necessarily be as strong a factor as the court seemed to claim?
Newdow: I think it's unconstitutional [altogether]. It's definitely worse in the schools, and the Court has in the past narrowed the schools as a separate category. I think it's wrong anytime. If you look at the principles underlying the Establishment Clause, especially as enunciated by the Supreme Court, you can't have the government taking sides in a religious dispute. There's a religious dispute here as to whether God exists, and government has come down on the side that yes, he does. They're not allowed to do that anywhere.
White: Eighty four percent of the population is opposed to the decision, according an oft-cited [USA Today/Gallop] poll. Those who bring up this poll also tend to say that this country was founded on Judeo-Christian principles. Those making such claims worry that a "tiny minority can stifle their rights," as Jim Backlin of the Christian Coalition put it.
What do you think of this so-called "tyranny of the minority" argument opponents to the decision are dishing out?
Newdow: There's different laws. The question is, are you talking about a fundamental constitutional right or not? Because if it's a normal law that does not involve fundamental constitutional rights, then [Backlin is] absolutely correct. We have a democratic process, and the majority should do whatever it wants. But when we're talking about fundamental constitutional rights, we're in a different ballgame. In those situations, it doesn't matter what the majority wants. If the majority wants to enslave blacks, too bad. You can't do it. If the majority wants to have the government implicating a religious belief, too bad. You can't do it. [Our Constitution] doesn't allow you to.
White: It's fairly obvious who doesn't support the decision: Senate Majority Leader Tom Daschle called it "nuts." Senator Robert Byrd called the Justice who wrote the opinion "stupid." Both the [United States] Senate and House [of Representatives] overwhelmingly approved resolutions condemning the ruling. The president of the Family Research Counsel called it "constitutional rubbish." A member of a Christian lobbying group noted, "I do not know what these robed tyrants are possibly high on." Then there's Bush, who said [the decision] was "out of step with the traditions and history of America" and that the current Pledge is a "confirmation of the fact that we received our rights from God."
But there's little in the press about who does support your movement. Have you received any positive feedback at all?
Newdow: Sure, tons of it. I get far more positive than negative.
I'll just note in response to [the above quotations], similar comments [were made by] the people who were upset when Brown v. Board of Education was decided.
White: This isn't the only case you've brought concerning religious references in government. For instance, the [case concerning] "In God We Trust" on the money. What other subjects have you been tackling in court?
Newdow: Actually, I switched the "In God We Trust" [issue] to ["Under] God" in the Pledge. I have a case against President [George W.] Bush for the use of purely Christian chaplains at his inauguration. I'm [also] trying to overturn a 1983 decision called Marsh v. Chambers that says it's okay to pay chaplains out of the public treasury and have them start off every session of Congress with prayers to God.
White: What do you think of the argument - used by the dissenting Ninth Circuit Justice - that such instances of religion in government fall under "ceremonial deism," existing not to promote religion but simply out of tradition?
Newdow: We had a tradition of enslaving blacks. I don't think ceremonial racism would be a particularly believable term. I don't find ceremonial deism to be any more believable.
It isn't ceremonial, anyhow. It's meant to invocate a certain belief. That's what the Congress said when they put the two words in the Pledge.
White: So far, you have argued this case yourself before the courts. Do you intend to do the same at the Supreme Court level?
Newdow: If they let me.
White: Are you nervous?
Newdow: No, not particularly. The law is strongly on my side.
White: So you got rid of Justice [Antonin] Scalia, who recused himself from the case per your request, which you made after you learned that he publicly stated [that] changes to the Pledge should be decided democratically, not by the courts. Do you believe that this will strengthen your chances before the Court?
Newdow: I wouldn't phrase it the way you phrased it - that I got rid of him. Do I think it strengthens my chances? If it's 4-4, the decision stands. However, I think it's going to be much better than that.
I kinda miss the idea of [Scalia] being there. (Laughs) I would have liked to discuss it with him. I don't think there is a reasonable other side to this case.
I think there are people who want to have God in government - the problem is that the Establishment Clause exists to say to those people, "sorry, you can't have that."
I have argued this with a lot of people. I'm still waiting for a reasonable argument.
Court to consider whether Newdow has standing
The Supreme Court will also hear arguments on whether Newdow has standing to bring the case. The child's mother has sole physical - and until recently legal - custody. The mother, a self-described born-again Christian, does not support Newdow's case.
The Ninth Circuit ruled that custody was irrevelant, for Newdow as a parent has a right to participate in the religious upbringing of his child.
Newdow received partial legal custody of his daughter in September, which strenghtens the chance that the Court will find that he has standing.
Justice Scalia recuses himself per Newdow's request
Justice Antonin Scalia recused himself from the case per an unusual request by Newdow, who cited statements that Scalia made during a speech eight months before the Court accepted the case.
During a Religious Freedom Day event - sponsored by a local chapter of the Knights of Columbus, who has filed an amicus curiae brief in the case - Scalia stated that any changes to the Pledge should be accomplished legislatively and not through the courts.
This makes the case easier for Newdow, as he only needs four votes, not five, to win.
Ninth Circuit uses three Supreme Court tests in ruling
The Ninth Circuit used three tests to strike down the inclusion of "under God" as unconstitutional under the First Amendment Establishment Clause.
Using the coercion test - created in Lee v. Weisman - the court ruled that young, impressionable students vulnerable to peer pressure must unfairly choose "between participating in an exercise with religious content or protesting."
Using the endorsement test - coined by Justice O'Connor in Lynch v. Donnelly - the court ruled that the Pledge unfairly separated society's outsiders from insiders.
And under the Lemon test, the court ruled that the Pledge's inclusion of "under God" does not have a secular purpose.
'Under God' added to Pledge in response to communism
Congress amended the Pledge of Allegiance in 1954 to include the phrase "under God" per lobbying by the Knights of Columbus. Fear of "godless" communism was a major reason behind the change.
President Dwight Eisenhower stated, "millionsof our school children will daily proclaim in every city and town, every village and rural schoolhouse, the dedication of our Nation and our people to the Almighty."
While the Supreme Court has not yet addressed the Pledge directly, it has supported it in dicta, classifying it as "ceremonial diesm" and not an endorsement of religion.
Related Links:
RestoreThePledge.com
One Nation, Under God? - CBS News
Supreme Court to consider Pledge - USA Today
Litigant explains why he brought Pledge suit - CNN
Pledge plaintiff explains why he sued - CNN Crossfire
The Man Behind the Pledge Case - Legal Times
Dad Who Mounted Pledge Challenge Gets Partial Custody
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