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Pledge Case Wrap-Up...For Now
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Slate provides the best overview of the proceedings yesterday, at least from ones I've read.

It seems evident that the Justices grilled Newdow pretty hard, and equally evident that he gave as good as he got. First there was a lot of wrangling about whether or not Newdow even had standing to bring the case. Thankfully, the Justices brushed aside that issue...they really did want to hash out the merits of the central issue itself.

Ted Olson made what sounds like a fairly anemic case for the school district, but the case really didn't get going until Newdow stood up:

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."

Justice Kennedy goes after him first:

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.

"Harm" still seems like a strange legal standard for bringing a case. A violation of civil liberties isn't always directly harmful...but whatever. The point is that the government is compelling a child to recite a religious acknowledgement which contradicts her father's beliefs.

Then O'Conner chimes in:

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.

Yeah...when you humbly seek the wisdom and blessing of Divine Providence, that does sound pretty much like prayer. Pretty dumb thing for Bush to say, actually.

But I don't think most people would consider it a prayer. It definitely is an affirmation of the existence of god, though.

If the Pledge read, "We are one nation, full of unicorns..." it would be recognizing that:

a) Unicorns exist
b) America is full of them

Would you want to take a daily oath that stated such a thing? Would you want your children to?

Same deal with the phrase "under god". When you say, "One nation, under god," that factually acknowledges that:

a) There is a god
b) America is under it/him/her

It's pretty absurd to argue otherwise.

Next, Justice Stephen Breyer:

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."

I'd even heard the absurd argument that "god" could be referring to atheist parents. Yeah...that makes a lot of sense. My parents are god, and America is under them...?

Most of the Justices objections so far seem pretty weak. You can tell from their tenor that they really do want to overturn the 9th Circuit decision, but see, the problem is, Newdow is right.

Souter is next:

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."

Exactly. If the tables were turned, and the Pledge explicitly denied the existence of god, it would be patently offensive to true believers. Why doesn't that standard apply to non-believers?

The author concludes:

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?

I think it would be very sad if the court split on this. I think the liklihood is that the decision will be to overturn. As much as the impartiality of the bench is proclaimed, there is enormous pressure from not only the public, but from the other two major branches of government to overturn the 9th Circuit Court's ruling, even though it was correct.

I think what's at stake here is the legitimacy of non-belief in American life. There's obviously a devaluing of atheism and agnosticism that is a direct outgrowth of the Cold War and America's very strong religious traditions.

It seems to me that at the core of this is a disturbing sentiment that people who choose not to believe in the supernatural are somehow devoid of morals and in many ways less American than their fellow citizens who do believe.

For decades, the non-believing legal agenda was almost single-handedly represented by Madalyn Murray O'Hair, who came across as a bitter, divisive zealot. Newdow has his problems, but it sounds as if he handled himself extremely well in court yesterday, hopefully paving the way for more legitimacy for advocates of secular governance combined with religious freedom.

Let's hope so.

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