Held Mar. 24, 2004 Before the US Supreme Court
I. News Recaps
“Michael A. Newdow stood before the justices of the Supreme Court on Wednesday [Mar. 24, 2005], pointed to one of the courtroom’s two American flags and declared: ‘I am an athiest. I don’t believe in 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.”
“U.S. Solicitor Gen. Theodore B. Olson and a Sacramento school attorney pressed the same argument. The pledge is ‘a ceremonial, patriotic exercise,’ not a call to religious faith, Olson said. Moreover, the reference to God in the pledge may be seen as stating the common belief that the nation was founded by those who believed in God, said Chief Justice William H. Rehnquist. ‘It’s descriptive,’ he said. ‘You can agree with it or not, but that doesn’t make it a prayer.’
Newdow did not agree. ‘It’s an affirmation of religious belief,’ he said.”
“‘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.'”
“Bush administration lawyer Theodore Olson said the pledge reflects America’s religious heritage. ‘It is an acknowledgment of the religious basis of the framers of the Constitution, who believed not only that the right to revolt, but that the right to vest power in the people to create a government… came as a result of religious principles,’ Olson said.”
“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.'”
“Still, it is not clear what view will win a majority. Only eight justices will decide the case, Elk Grove Unified School District vs. Newdow. Since Justice Antonin Scalia commented on the dispute at a public rally sponsored last year by the Knights of Columbus, he agreed to recuse himself from the case. That means Newdow could prevail on a 4 to 4 vote. If the justices are evenly divided, they will not issue a true ruling, but instead will announce that the decision of the U.S. 9th Circuit Court of Appeals is affirmed.
That in turn would mean it was unconstitutional for school districts in California and eight other Western states — those that fall in the 9th judicial circuit — to recite the words ‘under God’ in the Pledge of Allegiance. The rest of the nation would be free to continue as usual.”
“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.'”
II. Argument Excerpts
The following excerpts, published on Mar. 25, 2005 by the New York Times, are from Mar. 24, 2005 arguments before the US Supreme Court concerning the inclusion of “under God” in the Pledge of Allegiance. Solicitor General Theodore B. Olson and Terence J. Cassidy, the lawyer for a California school district, defended the current pledge, and Dr. Michael A. Newdow argued against it.
“JUSTICE JOHN PAUL STEVENS: Do you think that the pledge has the same meaning today as when it was enacted – when the words, under God, were inserted into the prayer, into the pledge?
MR. OLSON: It’s an important question because the reference to under God in the pledge, as numerous decisions of this court have indicated in dicta, what as a part of a thought process of coming about to the conclusion that it is an acknowledgment of the religious basis of the framers of the Constitution, who believed not only that the right to revolt, but that the right to vest power in the people to create a government became, came as a result of religious principles. In that sense, the Pledge of Allegiance is today, that has that same significance to this country as it did in 1954 when it was amended.
But as this court has also said, and that’s the other part of my answer to your question, this court has also said the ceremonial rendition of the Pledge of Allegiance in context repeatedly over the years has caused — would cause a reasonable observer familiar — as this Court’s First Amendment Establishment Clause jurisdiction points out — would cause a reasonable observer to understand that that is — this is not a religious invocation. It is not like a prayer, it is not a supplication, it’s not an invocation. It is —
JUSTICE RUTH BADER GINSBURG: Your argument is that there’s a stronger case now than there would have been 50 years ago?
MR. OLSON: Yes, JUSTICE GINSBURG, and that is for many reasons, for — because of the reason that I just made, but also because the Congress revisited this issue in 2002 after the decision below in this case. There are findings in the record which are a part of the brief, with respect to what the — what the pledge means, the context of the pledge in its historical context, in the connection with its civic invocation, its ability to invoke certain principles that are indisputably true, which gave rise to the institutions which have given us freedom over all this period of time.
It’s in — it is significant that the Court in, the Congress, in making those findings, specifically referred to the decisions that I was referring to before, which have been characterized as dicta, but very important dicta, because they explain how the Court came to its conclusions. . .
. . . And to go back to what this Court has taught us with respect to the Establishment Clause and the endorsement prong of the Establishment Clause, it’s the entire context. It’s the nation’s history, it’s a Pledge of Allegiance to the flag and to the nation for which it stands, and then a descriptive phrase, under God, indivisible, with liberty and justice for all. So —
JUSTICE GINSBURG: Well, why not have it like oath or affirmation? That is, give people a choice, don’t say it’s got to be all one way or all the other, but say children who want to say under God can say it and children who don’t, don’t have to say it.
MR. OLSON: Well, they don’t. They don’t have to say it. …
(MR. OLSON, cont.) In — in summary, the state — the Pledge of Allegiance is not what this Court has said the Establishment Clause protects against, that is to say, state-sponsored prayers, religious rituals or ceremonies, or the imposition or the requirement of teaching or not teaching a religious doctrine.
The Establishment Clause does not prohibit civic and ceremonial acknowledgments of the indisputable historical fact of the religious heritage 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, because although the king was infallible, they believe 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.
QUESTION: Thank you, General Olson.
ORAL ARGUMENT OF MICHAEL A. NEWDOW ON BEHALF OF THE RESPONDENTS
MR. NEWDOW: Mr. Chief Justice, and may it please the Court:
Every school morning in the Elk Grove Unified School District’s public schools, government agents, teachers, funded with tax dollars, have their students stand up, including my daughter, face the flag of the United States of America, place their hands over their hearts, and affirm that ours is a nation under some particular religious entity, the appreciation of which is not accepted by numerous people, such as myself. We cannot in good conscience accept the idea that there exists a deity.
I am an atheist. I don’t believe in God. And every school morning my child is asked to stand up, face that flag, put her hand over her heart, and say that her father is wrong.
MR. NEWDOW: 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 be asked to stand up, put her hand over her heart, and say your father is wrong, which is what she’s told every morning. That is an actual, concrete, discrete, particularized, individualized harm to me, which gives me standing, and not only gives me standing, demonstrates to this Court how the —
JUSTICE SANDRA DAY O’CONNOR: Well, she does have a right not to participate.
MR. NEWDOW: She has a — yes, except under Lee v. Weisman she’s clearly coerced to participate. If there was coercion in Lee v. Weisman —
JUSTICE O’CONNOR: That was a prayer.
MR. NEWDOW: Well, I’m not sure this isn’t a prayer, and I’m — I am sure that the Establishment Clause does not require prayer. President Bush, and this is in the Americans United brief, stated himself that when we ask our citizens to pledge allegiance to one nation under God, they are asked to participate in an important American tradition of humbly seeking the wisdom and blessing —
JUSTICE O’CONNOR: Yeah, but I suppose reasonable people could look at the pledge as not constituting a prayer.
MR. NEWDOW: Well, President Bush said it does constitute a prayer.
CHIEF JUSTICE WILLIAM H. REHNQUIST: Well, but he — we certainly don’t take him as the final authority on this.
CHIEF JUSTICE REHNQUIST: What — what you say is, I pledge allegiance to the flag of the United States of America and to the republic for which it stands. So that certainly doesn’t sound like anything like a prayer.
MR. NEWDOW: Not at all.
CHIEF JUSTICE REHNQUIST: Then why isn’t General Olson’s categorization of the remainder as descriptive, one nation under God, with liberty and justice for all? You can disagree it’s under God, you can disagree that it’s — has a liberty and justice for all, but that doesn’t make it a prayer.
MR. NEWDOW: First of all, I don’t think that we want our — that the purpose of the Pledge of Allegiance is to disagree that it’s liberty and justice for all. I think the whole purpose of the pledge is to say that, and this Court has stated it’s an affirmation of belief, an attitude of mind when we pledge, and I think you have to take all the words. It says under God. That’s as purely religious as you can get and I think it would be an amazing child to suddenly come up with this knowledge of the history of our society and — and what our nation was founded on.
CHIEF JUSTICE REHNQUIST: What if, instead of the Pledge of Allegiance, the school required the children to begin their — their session by singing God Bless America? Would that make your case weaker or stronger? …
MR. NEWDOW: I think that if they stood up the child and they said, stand up, face the flag, put your hand on your heart and you say God bless America, I think that would clearly violate the line as well, just as in God we trust.
CHIEF JUSTICE REHNQUIST: Well, my hypothesis is that they ask the children to stand and to sing the patriotic song, God Bless America.
MR. NEWDOW: I think the Court would have to go through its — its normal procedures and say, was this done for religious purpose? Does it have religious effects? Is it attempting to endorse religion? We would look at the text —
JUSTICE GINSBURG: Sounds pretty much, much more like a prayer than under God, God bless America.
MR. NEWDOW: I don’t think so. I mean, we’re saying that this nation is under God. I mean, Congress told us itself when it passed the law.
JUSTICE GINSBURG: And if children who say God bless Mommy and God bless Daddy, they think they’re saying a prayer.
MR. NEWDOW: They think they’re saying God bless, yes, and when they say, if Daddy and Mommy were under God, they’d be also assuming that there was a God there if they said that, and especially if they’re stood up in the public schools. If they did that —
JUSTICE GINSBURG: It’s two words sandwiched in the middle of something and the child doesn’t have to say those words.
MR. NEWDOW: But the Government is not allowed to take a position on that. Government is saying there’s a God. Certainly the child doesn’t have to affirm that belief if there weren’t the coercion that we see in —
JUSTICE GINSBURG: The child doesn’t have to if it doesn’t want to. That’s not an issue in this case.
MR. NEWDOW: The issue is whether or not government can put that idea in her mind and interfere with my right. I have a absolute right to raise my child as whatever I see. Government is weighing in on this issue.
GINSBUSRG: No, you don’t, you don’t. You — there is another custodian of this child who makes the final decision who doesn’t agree with you.
JUSTICE O’CONNOR: Of course, we have — we have so many references to God in our daily lives in this country. We opened this session of the Court today —
MR. NEWDOW: Correct, and there are —
JUSTICE O’CONNOR: — with a reference, and I suppose you would find that invalid as well.
MR. NEWDOW: Not — not under what the — this Court has to distinguish in this case. No one — when this Court opens, God save this honorable Court, nobody’s asked to stand up, place their hand on their heart and affirm this belief. This Court stated in West Virginia v. Barnette that this is an affirmation, a personal affirmation.
JUSTICE O’CONNOR: And you have no problem with, in God we trust, on the coins and that sort of thing?
MR. NEWDOW: If my child was asked to stand up and say, in God we trust, every morning in the public schools led by her teachers —
JUSTICE O’CONNOR: It’s all right for her to have the coins and use them and read them, but it’s the problem of being asked to say the pledge?
MR. NEWDOW: I’m saying in this —
JUSTICE O’CONNOR: Which she doesn’t have to say.
MR. NEWDOW: Well, first of all, under Lee v. Weisman, she is coerced in —
JUSTICE O’CONNOR: Now, wait a minute. We have other authorities saying that no child is required to say the pledge.
MR. NEWDOW: And no child was required to be at the graduation at Lee v. Weisman, but we said this is a coercive effect on —
JUSTICE O’CONNOR: That was a prayer.
MR. NEWDOW: And — then we’re back to the idea of why did Congress — Congress told us why they stuck this into the pledge.
JUSTICE KENNEDY: Well, let’s — we have to be careful about the facts here. Your — your daughter is not required, and of course, I have a serious problem about your daughter’s standing, but your daughter is not required to put her hand over her heart and face the flag. That’s a misstatement. She is not required to do that.
MR. NEWDOW: She’s not required but she is coerced. She is standing there. She’s a 6-, 7-year-old kid at the time, and she —
JUSTICE KENNEDY: Justice O’Connor points out that’s the difference in Lee and Weisman and West Virginia Board of Education v. Barnette. One is a prayer, the other isn’t.
MR. NEWDOW: Well, it’s — again, the Establishment Clause does not require a prayer. To put the Ten Commandments on the wall was not a prayer yet this Court said that violated the Establishment Clause. To teach evolution or not teach evolution doesn’t involve prayer, but that can violate the Establishment Clause. The issue is is it religious, and to say this is not religious seems to me to be somewhat bizarre.
And as a matter of fact, we can look at the standing argument and we can look at Elk Grove Unified School District’s brief, in which eight times they mention that this is the mother involved with religious upbringing, they keep talking about religious upbringing, 18 times they spoke about religious education, religious training, religious interest. All of this has to do with religion, and to suggest that this is merely historical or patriotic seems to me to be somewhat disingenuous.
JUSTICE STEPHEN G. BREYER: I mean, it’s a pretty broad use of religion sometimes. I — does it make you feel any better, and I think the answer’s going to be no, but there is a case called Seeger, which referred to the Constitution — to the statute that used the word, supreme being, and it said that those words, supreme being, included a set of beliefs, sincere beliefs, which in any ordinary person’s life fills the same place as a belief in God fills in the life of an orthodox religionist. So it’s reaching out to be inclusive, maybe to include you, I mean, to — because many people who are not religious nonetheless have a set of beliefs which occupy the same place that religious beliefs occupy in the mind and woman of a religious — of a religious mind in men and women.
So do you think God is so generic in this context that it could be that inclusive?
JUSTICE BREYER: And if it is, then does your objection disappear?
MR. NEWDOW: I don’t think so, because if I’m not mistaken with regard to Seeger, Seeger — the Government was saying what Seeger thought about religion and what’s occupied in Seeger’s mind. Here it is the Government and there’s a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and — and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect. And in that case we’re talking about protecting that individual’s right for him to say in his view that this occupies the same thing as God.
Here we’re talking about government, everybody on the way here is government. It’s Congress that stuck the two words, under God, into the pledge, clearly for a religious purpose. It’s the State of California that says, go ahead, use the Pledge of Allegiance, which is now religious. It is the city of Elk Grove that says, now we’re going to demand —
JUSTICE BREYER: But what I’m thinking there is that perhaps when you get that broad in your idea of what is religious, so it can encompass a set of religious-type beliefs in the minds of people who are not traditionally religious, when you are that broad and in a civic context, it really doesn’t violate the Establishment Clause because it’s meant to include virtually everybody, and the few whom it doesn’t include don’t have to take the pledge.
MR. NEWDOW: You’re referring to the two words, under God?
JUSTICE BREYER: Yeah, under God is this kind of very comprehensive supreme being, Seeger-type thing.
MR. NEWDOW: I don’t think that I can include under God to mean no God, which is exactly what I think. I deny the existence of God, and for someone to tell me that under God should mean some broad thing that even encompasses my religious beliefs sounds a little, you know, it seems like the Government is imposing what it wants me to think of in terms of religion, which it may not do. Government needs to stay out of this business altogether. And this Court has always referred to –…
JUSTICE GINSBURG: There’s an option here too. The child does not have to say it at all, can say it except for the words, under God, or can say the whole thing.
MR. NEWDOW: I think that’s a huge imposition to put on a small child. Imagine you’re the one atheist with 30 Christians there and you say to this child, let’s all stand up, face the flag, say we are one nation under God and we’re going to impose on a small child the — this immense amount of power, prestige, and financial support —
JUSTICE KENNEDY: Now, I just — I just want to point out that once again you’re arguing based on the child, and I — I think there’s a serious standing problem.
MR. NEWDOW: I think the argument I’m trying to make, and I may not be making it well, is that government is doing this to my child. They are telling her, they’re putting here 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 that it is — …
JUSTICE DAVID H. SOUTER: What do you make of this argument? I will 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. We’re pledging allegiance to the flag and to the republic. The republic is then described as being under God, and I think a fair reading of that would — would be I think that’s the way the republic ought to be conceived, as under God. So I think — I think there’s some affirmation there. I will grant you that.
What do you make of the argument that in actual practice the affirmation in the midst of this civic exercise as a religious affirmation is so tepid, so diluted then so far, let’s say, from a compulsory prayer that in fact it should be, in effect, beneath the constitutional radar. It’s sometimes, you know the phrase, the Rostow phrase, the ceremonial deism.
What do you make of that argument, even assuming that, as I do, that there is some affirmation involved when the child says this as a technical matter?
MR. NEWDOW: I think that that whole concept goes completely against the ideals underlying the Establishment Clause. We saw in Minersville v. Gobitis and West Virginia v. Barnette something that most people don’t consider to be religious at all to be of essential religious value to those Jehovah’s Witnesses who objected. And for the Government to come in and say, we’ve decided for you this is inconsequential or unimportant is an arrogant pretension, said James Madison. He said in his memorial —
JUSTICE SOUTER: Well, I think the argument is not that the Government is saying, we are defining this as inconsequential for you. I think the argument is that simply the way we live and think and work in schools and in civic society in which the pledge is made, that the — that whatever is distinctively religious as an affirmation is simply lost. It — it’s not that the — that the Government is saying, you’ve got to pretend that it’s lost. The argument is that it is lost, that the religious, as distinct from a civic content, is close to disappearing here.
MR. NEWDOW: And again, I — I don’t mean to go back, but it seems to me that is a view that you may choose to take and the majority of Americans may choose to take, but it doesn’t — it’s not the view I take, and when I see the flag and I think of pledging allegiance, I — it’s like I’m getting slapped in the face every time, bam, you — you know, this is a nation under God, your religious belief system is wrong.
And here, I want to be able to tell my child that I have a very valid religious belief system. Go to church with your mother, go see Buddhists, do anything you want, I love that — the idea that she’s being exposed to other things, but I want my religious belief system to be given the same weight as everybody else’s. And the Government comes in here and says, no, Newdow, your religious belief system is wrong and the mother’s is right and anyone else who believes in God is right, and this Court —
JUSTICE GINSBURG: If you had her here in this courtroom and she stood up when the Justices entered and she heard the words, God save the United States and this honorable Court, wouldn’t the injury that you’re complaining about be exactly the same, so you would have equal standing on your account of things to challenge that as you do to challenge what the school district does here?
MR. NEWDOW: I don’t think the injury would be even close to the same. She’s not being asked to stand up, place her hand on her heart, and say, I affirm this belief, and I think that can easily distinguish this case from all those other situations. Here she is being asked to stand and say that there exists a God. Government can’t ever impose that —
JUSTICE GINSBURG: If she’s asked to repeat or to sing, as the Chief Justice suggested, God Bless America, then she is speaking those words.
MR. NEWDOW: Again, if it were a situation where we said, let’s only do nothing else in this classroom, all right, we’ll say God bless America and let’s just say those words or something, I think that would violate the Constitution as well. If it’s just, let’s sing one song a day and once a month we get God Bless America, no, that would be certainly fine. We don’t want to be hostile to religion.
But here we’re not — it’s not a question of being hostile to religion. It’s indoctrinating children and Congress said that was the purpose. …
JUSTICE BREYER: So it’s not perfect, it’s not perfect, but it serves a purpose of unification at the price of offending a small number of people like you. So tell me from ground one why — why the country cannot do that?
MR. NEWDOW: Well, first of all, for 62 years this pledge did serve the purpose of unification and it did do it perfectly. It didn’t include some religious dogma that separated out some — …
Again, the Pledge of Allegiance did absolutely fine and with — got us through two world wars, got us through the Depression, got us through everything without God, and Congress stuck God in there for that particular reason, and the idea that it’s not divisive I think is somewhat, you know, shown to be questionable at least by what happened in the result of the Ninth Circuit’s opinion. The country went berserk because people were so upset that God was going to be taken out of the Pledge of Allegiance.
CHIEF JUSTICE REHNQUIST: Do we know — do we know what the vote was in Congress apropos of divisiveness to adopt the under God phrase?
MR. NEWDOW: In 1954?
CHIEF JUSTICE REHNQUIST: Yes.
MR. NEWDOW: It was apparently unanimous. There was no objection. There’s no count of the vote.
CHIEF JUSTICE REHNQUIST: Well, that doesn’t sound divisive.
MR. NEWDOW: That’s only because no atheist can get elected to public office.
CHIEF JUSTICE REHNQUIST: The courtroom will be cleared if there’s any more clapping. Proceed, MR. NEWDOW.
JUSTICE KENNEDY: You say this is the same as the prayer in Lee v. Weisman?
MR. NEWDOW: No, not at all. I’m saying it’s a religious exercise, and clearly the whole idea, the intent of Congress was —
JUSTICE KENNEDY: You’re saying both as a religious — are religious exercises?
MR. NEWDOW: Well, I think religious exercise is a larger set, prayer is a subset. I would say again the President of the United States considers the pledge in that subset. Whether or not you do or I do is — is somewhat, I think irrelevant, because the question —
JUSTICE KENNEDY: Well, now, it — it — let’s suppose, I thought the case turned on whether this was a religious exercise.
MR. NEWDOW: I think it definitely is, and it is because the two words are, under God, and I can’t see of anything that’s not religious, under God…
It fails the endorsement test, it fails the outsider test. Imagine you’re this one child with a class full of theists and you have this idea that you want to perhaps at least consider and you have everyone imposing their view on you, it fails every test this Court has ever come up with, and there’s a principle here 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.
QUESTION: Thank you, MR. NEWDOW.
TERENCE J. CASSIDY, LAWYER FOR THE SCHOOL DISTRICT:
The Pledge of Allegiance in grammar schools, in public schools, is part of a teaching program, and that’s what we’re here about, to talk about the educational upbringing of a child, and it has to do with national unity and citizenship of our young students.
JUSTICE STEVENS: May I ask you just one question? …One of the amicus briefs filed in this case has this sentence in it. I’d like you to comment on. If the religious portion of the pledge is not intended as a serious affirmation of faith, then every day government asks millions of school children to take the name of the Lord in vain. Would you comment on that argument?
MR. CASSIDY: I would disagree, because we feel that the use of the term, one nation under God, reflects a political philosophy, and the political philosophy of our country, as set forth in the Declaration of Independence, is that ours is one of a limited government, and that is the philosophy that’s now more enhanced, more reflected in the 1954 act.”