Divided we stand?
Pledge comes under scrutiny
The Supreme Court debates whether Pledge of Allegiance should continue to use the phrase ‘under God.’

By Anne Gearan
Associated Press

WASHINGTON — Not long after the Supreme Court came to order Wednesday with the invocation, “God save the United States and this honorable court,” the justices were deep in a wrenching argument over whether millions of public schoolchildren may continue pledging allegiance to one nation “under God.”

The religious reference in the Pledge of Allegiance, a California atheist argued, is an unconstitutional government promotion of religion in his daughter’s third-grade classroom.
“I am an atheist. I don’t believe in God,” Michael Newdow told the justices and a rapt, packed courtroom, arguing with passion and personal asides — unusual for the dry, cerebral high court. “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.”

On the other side, 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.

That view was loudly represented outside the court, with scores of demonstrators reciting the pledge and carrying signs that read, “In God We Trust.”

The high court is expected to rule by summer.

Newdow, a lawyer, made the rare and usually foolhardy decision to argue his own case before the court. He withstood the justices’ vigorous questions, and based on their smiles and glances, it seemed he had won their respect.

Newdow had prevailed in one respect before Wednesday’s argument began. He had asked Justice Antonin Scalia to step aside because of remarks that seemed to prejudge the case. Scalia complied.

If the rest of the court agrees with Newdow now, it could declare that the phrase “under God” breaches the figurative wall separating church and state. That would mean an end to the Pledge of Allegiance as generations of American schoolchildren have known it.
Or, as several justices indicated during arguments, the court could rule that the words are a benign and ceremonial part of a traditional, patriotic exercise.

“We have so many references to God in our daily lives today,” Justice Sandra Day O’Connor told Newdow, including the court’s own, familiar opening call.If the pledge cannot refer to God, the justices asked, what about the phrase “In God We Trust” on U.S. currency? What about dating laws and government proclamations with the notation, “in the year of our Lord?”

Newdow’s answer: Nobody is making his 9-year-old say “In God We Trust” or singling her out as an oddball if she refuses.The Supreme Court already has ruled that schoolchildren cannot be forced to say the pledge, but Newdow says that is not good enough. When a teacher, paid by taxpayers, stands up and leads the pledge, it is unrealistic to expect small children to opt out, Newdow said.

“Imagine you’re the one atheist with 30 Christians,” Newdow said.

Newdow is almost single-handedly fighting not only his daughter’s Sacramento-area school, but also the Bush administration and a majority of American public opinion. The girl’s mother also opposes his effort.

Almost nine in 10 people said the “under God” reference belongs in the pledge, according to an Associated Press-Ipsos poll released this week.

Newdow and supporters such as the American Civil Liberties Union also must contend with the court’s own statements about the pledge in the past.

Olson pointed to 14 instances where various Supreme Court justices have endorsed the wording, religious reference and all.

Congress inserted the words “under God” in 1954, at the height of the Cold War, to distinguish the religious tradition of the United States from the official atheism of the Soviet Union. Some defenders of the pledge argue that even with those beginnings, the passage of time has laundered the words of their religious meaning.

Newdow won in San Francisco’s 9th U.S. Circuit Court of Appeals, which ruled that teachers are barred from leading the pledge, with its reference to God, in public schools.
The Supreme Court repeatedly has banned prayers and official religious exercises from public schools, and the 9th Circuit relied on those previous cases in its ruling.

Should the high court uphold the decision, public schools could still recite a pledge with its pre-1954 wording, “one nation indivisible, with liberty and justice for all.”

Before the high court decides the meat of the case, it must determine a crucial procedural issue. The Bush administration and other pledge supporters claim Newdow does not have the proper legal footing to bring his case because he does not have full legal custody of his daughter.

Newdow was never married to the girl’s mother, and the precise details of their custody arrangement are complex and changeable. Sandra Banning, a Christian and a supporter of the Pledge’s wording, has legal custody and the right to make decisions about her daughter’s education. She attended the hearing Wednesday.

The 9th Circuit said Newdow nonetheless had standing to challenge the pledge, but the Supreme Court could disagree. The justices, if they choose so, could decide only that Newdow cannot bring the suit, without tackling the tough constitutional question.