When Michael A. Newdow urges the Supreme Court today to ban the mandatory recitation of the Pledge of Allegiance in public schools, he will be up against not only the Elk Grove (Calif.) Unified School District, where his daughter attends classes.
Newdow will also be battling the school district’s supporters: the Bush administration, the Republican and Democratic leaders of Congress, dozens of members of both the House and the Senate, the governments of all 50 states, the National Education Association, and even a group billed as “Grassfire.net and Hundreds of Thousands of Americans.”
But the California atheist does have one advantage — consistency.
An unabashed proponent of extirpating all religious references from public life, Newdow has no problem standing before the court and urging it to edit “under God” out of the pledge, even if that logic, extended, would probably doom “In God We Trust” on currency and even the cry of “God save the United States and this honorable court,” with which the Supreme Court commences its work each day.
His opponents, by contrast, must negotiate a minefield of Supreme Court precedents that have interpreted the constitutional prohibition on the official establishment of religion to mean that government must stay neutral among religious beliefs, avoid actions that have the purpose or effect of endorsing any religious belief, and refrain from coercing individual citizens to express a religious belief.
It helps their cause that many justices have observed in passing that the pledge is probably constitutional, but that is hardly conclusive.
Thus, to some extent, legal analysts say, the pro-pledge case is a result in search of a legal rationale.
“If you look at the logic of the cases writ large, take their logical principles and try to apply them in the abstract, then Newdow wins, because the pledge seems to endorse religion in some measure,” said Eugene Volokh, a professor of constitutional law at the University of California at Los Angeles. “The rationale [for the pledge] is pretty clear — it’s the ‘no extirpation’ rationale. . . . But the question is, how do you translate that into a legal rule? And the answer is, it’ll be quite a challenge for the court to do.”
In 1992, for example, the court ruled 5 to 4 that a rabbi’s nonsectarian invocation at a public high school graduation ceremony violated the establishment clause of the First Amendment because nonreligious students might feel psychological pressure to join in, even if they were not formally required to do so.
The San Francisco-based U.S. Court of Appeals for the 9th Circuit cited that case, Lee v. Weisman, in its decision last year banning the recitation of the pledge in the public schools of nine western states.
Though students have always been free to remain silent during the recitation of the pledge, the 9th Circuit court ruled that the mere fact that Newdow’s daughter in elementary school had to stand and listen to “under God” violated his right to instruct her in religious matters without state interference.
The 9th Circuit court noted that the pledge was rewritten by Congress in 1954 to include “under God” as a way to contrast the United States with the officially atheistic Soviet Union, making it a state-sponsored affirmation of monotheism.