Pledge's 'under God' goes to justices

Father's fight to remove wording has become symbolic for some
 

09:56 PM CST on Sunday, March 21, 2004

By ALLEN PUSEY / The Dallas Morning News

WASHINGTON – The U.S. Supreme Court on Wednesday will hear a divorced father from California argue that neither his daughter nor anyone else should have to utter the words "under God" when reciting the Pledge of Allegiance.

By any measure, he has his work cut out for him.

The father, Michael Newdow, is a medical doctor and a lawyer and an atheist. He'll be arguing the case for himself by himself. His daughter and her mother say they want no part of his crusade. Even some sympathetic libertarian groups say they fear it distracts from more essential questions of personal liberty that the court will hear this year regarding the war on terrorism and the Patriot Act.

And to make matters worse – or at least more complicated – when the justices assemble to hear his arguments, they will do so to their traditional admonition, which ends with the words, "God save the United States and this honorable court."

Still, since Dr. Newdow convinced the 9th U.S. Circuit Court of Appeals in June 2002 that the religious reference violates the constitution, the case has become – for some – as symbolic as the flag that inspired it: either part of a campaign to eradicate any public role for religion or a long overdue challenge to the growing political influence of religious activism.

"The law is very clearly on my side," Dr. Newdow says. "The constitution prohibits the government from taking sides on religious questions, but the majority likes to have its views imbued into government."

"There are lots of groups that want to sanitize the public square of any religious activity," said James Towey, head of the White House Office of Faith-Based and Community Initiatives. "That's not what the constitution says, and not what the public wants."

Mark Tushnet, a constitutional scholar at Georgetown University law school, says the importance of the case rests in the eye of the beholder: "This case definitely falls within the symbolic side of the spectrum."

However, the beholders are passionate and numerous.

The U.S. Senate and the U.S. House have filed individual "friend of the court" briefs supporting the pledge and its current wording. Justice Antonin Scalia was forced to recuse himself from the proceedings after publicly describing the lower court decision as "stupid."

The Bush administration has filed a brief supporting the Elk Grove Unified School District, where Mr. Newdow's 10-year-old daughter attends school. It describes the religious reference as primarily historical and ceremonial, a phrase intended to evoke the historical beliefs – not the religious beliefs – of the nation's founders.

In a brief filed on behalf of a group of federal lawmakers calling themselves the Committee to Protect the Pledge, Alan Jay Sekulow of the American Center for Law and Justice decried the 9th Circuit opinion as "profoundly wrong."

Mr. Sekulow argues that religion – even Christian religion – is a matter of historical fact reflected in the pledge. And just as the wording of the Declaration of Independence describes humankind as "endowed by their Creator" the wording of the pledge should be protected.

"It is not a prayer. It is not Christian. It is only two words. It has 50 years of history. And no one is forced to recite it," Mr. Sekulow says.

Douglas Laycock, who specializes in issues of religious freedom at the University of Texas law school, thinks that reasoning is disingenuous. He has filed a "friend of the court" brief in support of Dr. Newdow on behalf of more than 32 religious leaders who believe that the phrase "under God" crosses the line that should separate church and state.

He says the Pledge of Allegiance – because it is a "pledge" – makes it different from the Supreme Court's ceremonial admonition or the phrase "In God We Trust" found on most U.S. currency.

"This is a serious issue to the parents of more than 7 million schoolchildren whose parents are either irreligious or who are believers in Buddhism or Hinduism or other religions that don't believe in a single, unified God. It's the personal affirmation that makes it unique."

And to argue that it doesn't matter because it's not religious misses the point, Mr. Laycock says. "If that were what it meant, then we wouldn't have had the uproar we had after the 9th Circuit decision [overturning the pledge] was announced."

The Constitution itself is at once specific and ambivalent. The very first words of the First Amendment forbid the "establishment" of a state religion; the very next clause prohibits any law that would stifle the "free exercise" of religious belief.

That the pledge has become so controversial is no surprise to Dr. John W. Baer, who has studied its 102-year history extensively. He says the pledge has often been the target of conflicting passions: "The Pledge of Allegiance has been controversial ever since it was written. Why should this case be any different?"

Although penned in 1892 by a Baptist minister, the original 23-word pledge contained no reference to a deity. Its author, Francis Bellamy, wrote it as part of a ceremony to honor the 400th anniversary of Columbus' arrival in the "New World" of the Western Hemisphere.

In its entirety, the original pledge read: "I pledge allegiance to my flag and to the Republic for which it stands; one nation, indivisible, with liberty and justice for all."

Over several decades, the pledge changed, but only in ways to make it more specific (and less confusing) for millions of new American immigrants. The words "my flag" were changed to "the flag of the United States of America" so that the pledge could not be co-opted by other countries.

It was not until 1954 that Congress approved the pledge in its current wording.

Dr. Baer credits Louis Bowman, an Illinois lawyer, for sparking the campaign to add the words "under God." He said Bowman, a devout Catholic inspired by the Gettysburg address, pressed the Knights of Columbus to lobby Congress to add the deific reference.

Even then, Dr. Baer said, Congress worried about the constitutionality of the wording, assuring that the phrase "under God" was intended to be a ceremonial acknowledgment of the nation's history – not a religious text.

In 1943, the Supreme Court ruled that reciting the pledge could not be made mandatory. Jehovah's Witnesses had argued that reciting the pledge amounted to a religious exercise that was contrary to their beliefs.

Said Justice Robert H. Jackson in the case: "The use of an emblem or flag to symbolize some system, idea, institution, or personality is a short-cut from mind to mind. ... A person gets from a symbol the meaning he puts into it, and what is one man's comfort and inspiration is another's jest and scorn."

In fact, changes in the prescribed ritual of the pledge were made after groups like the Boy Scouts of America and the Daughters of the American Revolution complained that a requisite salute to the flag too closely resembled that of Hitler's Nazi regime.

Dr. Newdow said that he suffered a barrage of criticism shortly after he won the appellate decision. Since then, he said, messages have dwindled to a few calling to remind him that "Jesus loves me."

But ironically, the case may well hinge not on history or religion, but rather on Dr. Newdow's standing to file on behalf of his daughter. As a non-custodial parent, Elk Grove maintains that he cannot challenge matters of his daughter's education except through the family courts, where Dr. Newdow has been involved in a bitter custody dispute. Dr. Newdow views that as a legal distraction.

"Whether I have custody or not, my daughter is forced to view me as strange because of the school system's attitude toward my beliefs. I don't think government should be any part of that," Dr. Newdow said.

Though he attended law school and passed the California bar, Dr. Newdow has never practiced as a lawyer and has carried his case forward on a financial shoestring. He has prepared himself for Wednesday's arguments with nearly a dozen moot court trials and countless hours of reading and recitation. His parents – "non-practicing Jews," as he describes them – have been supportive and will be attending Wednesday's arguments. Because the case will involve custody issues, his daughter will not be attending.

Whatever his daughter's personal beliefs about the pledge, Dr. Newdow said she, like he, is proud of the fact that he has carried his case, as a simple citizen, to the nation's highest court. "I think she's proud of her dad."