Atheist Scores Fresh Win in Pledge Case

By Josh Richman

Published March 07, 2003, issue of March 07, 2003.
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OAKLAND — Michael Arthur Newdow scored another legal win last week in his crusade to remove “under God” from the Pledge of Allegiance, but the Bush administration is vowing not to give up the fight.

An avowed atheist and resident of Sacramento, Calif., Newdow claimed victory again February 28 when a federal appeals court refused to reconsider its June ruling that the pledge’s wording violated the First Amendment ban on governmental establishment of religion. But Attorney General John Ashcroft seems bent on appealing the decision to the Supreme Court.

“The Justice Department will spare no effort to preserve the rights of all our citizens to pledge allegiance to the American flag,” Ashcroft said following last week’s ruling by the 9th U.S. Circuit Court of Appeals. “We will defend the ability of Americans to declare their patriotism through the time-honored tradition of voluntarily reciting the Pledge.”

The ruling by the circuit court, which says the phrase “under God” is unconstitutional when recited in public schools, was set to take effect in nine Western states March 10. But the court agreed to stay its order pending further appeals after a request by the Elk Grove Unified School District, the Northern California district named as a defendant in the suit.

Following his victory last year, Newdow became an instant media celebrity. President Bush declared the ruling “ridiculous” and Congress launched into fits of patriotic fervor. Newdow’s answering machine was swamped with death threats.

Still, Newdow told the Forward, he would welcome a showdown in front of the high court.

“I think they’ll rule in my favor, and it would be nice to get this settled and get all this religious dogma out of our government as the Establishment Clause requires,” Newdow said. “I wouldn’t be surprised if this case was 9-0.”

Such unanimity in Newdow’s favor seems unlikely, judging from the internal feuding that the case sparked in the far more liberal circuit court. In June, a three-judge panel of the 9th Circuit — frequently criticized as a hotbed of liberal judicial activism — ruled 2-1 in Newdow’s favor, overturning a district federal judge.

The two judges in the majority, Alfred Goodwin and Stephen Reinhardt, upheld their ruling last week, but limited it to the recitation of the pledge in public schools. The decision would affect about 9.6 million students in nine Western states that fall under the court’s jurisdiction.

Judge Ferdinand Francis Fernandez reiterated his dissent, arguing that the phrase “under God” could have only the most minimal effect on religious freedoms.

The situation on the court turned ugly after the government petitioned for an en banc rehearing before an 11-judge panel of the appeals court — a move that would have required support from 13 of the court’s 24 active members. In the end, only nine judges favored holding a wider hearing.

Reinhardt, a prominent figure in the Los Angeles Jewish community, issued an opinion arguing that public and political reaction is not sufficient reason for a court to reconsider its rulings.

“The Constitution contemplates occasions when we must be responsive to long-term societal trends,” Reinhardt wrote. “This broader long-term social conscience, however, is a matter far different from responding to particular immediate political pressures. We may not — we must not — allow public sentiment or outcry to guide our decisions.”

In a sharply worded dissent, one of the court’s leading conservatives, Diarmuid O’Scannlain, countered that the case needed to be heard again simply because the panel got it wrong the first time.

“We should have reheard [the case] not because it was controversial, but because it was wrong, very wrong — wrong because reciting the Pledge of Allegiance is simply not a ‘religious act’ as the two-judge majority asserts, wrong as a matter of Supreme Court precedent properly understood, wrong because it set up a direct conflict with the law of another circuit, and wrong as a matter of common sense,” he wrote. “Such an assertion would make hypocrites out of the Founders, and would have the effect of driving any and all references to our religious heritage out of our schools, and eventually out of our public life.”

In his response to last week’s ruling, Ashcroft noted that the Declaration of Independence, Constitution, national anthem, American coins and the Gettysburg Address all reference God — as does the Supreme Court, which opens each session with a rousing, “God save this honorable Court.”

For Newdow, a Bronx native whose father was an atheist and whose Jewish mother told him she believed in God only so he would have a balanced upbringing, that is simply more cause for concern.

Newdow began his fight about six years ago after pondering how the coins in his hand declared: “In God We Trust.”

Then living in Fort Lauderdale, Fla., Newdow sued the government to remove religious references from American currency; he later amended that case to also include the pledge. His standing to sue in Florida ended when he moved to Sacramento later in 1997.

This week, Newdow rejected O’Scannlain’s argument that the ruling “confers a favored status on atheism in our public life.” Newdow argued that banning the language about God would simply be a way to level the playing field for atheists who are constantly coerced into accepting other people’s religious beliefs under the guise of patriotism.

Newdow said he is ready, willing and able to make his case before the Supreme Court.

“I’m a novice at all of this,” he said. “I always seek advice from people, but I plan on still writing and arguing it all myself.”

Asked if he’s daunted by the prospect of representing himself before the highest court in the land, Newdow replied: “It’s exciting. I look at it as an opportunity to strengthen our nation.”

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