High Court Considers Pledge of Allegiance Case

[Dreamer128]

By James Vicini
WASHINGTON (Reuters) - The U.S. Supreme Court considers on Wednesday whether the words "under God" must be removed from the Pledge of Allegiance during its recitation in public schools, an important case on church-state separation.

The high court will question what role religion can play in public life during an hour of arguments in a case that already has sparked a political uproar and generated widespread interest.

The high court will examine whether a public school district policy requiring teachers to lead willing students in reciting the pledge amounts to an unconstitutional government endorsement of religion.

The words "under God" were added to the pledge as part of a 1954 law adopted by Congress in an effort to distinguish America's religious values and heritage from those of communism, which is atheistic.

Millions of students every day "pledge allegiance to the flag of the United States of America and to the republic for which it stands, one nation, under God, indivisible, with liberty and justice for all."

Atheist Michael Newdow, an emergency room doctor from California who has a law degree and is acting as his own attorney, will argue the case.

"I think that I'll be prepared," said Newdow, who has held 11 practice sessions. Newdow predicted he will win in striking "under God" from the Pledge by an 8-0 decision.

Solicitor General Theodore Olson, the government's chief advocate before the Supreme Court, will defend the phrase "under God" as constitutional.

PATRIOTIC OR RELIGIOUS?

In written arguments, Olson said, "The pledge is not a prayer or other type of overt religious exercise, and its reference to 'one nation under God' is not sacred text."

"Like singing the National Anthem or memorizing the Gettysburg Address, reciting the pledge is a patriotic, not a religious exercise," he said.
The third lawyer arguing will be Terence Cassidy, an attorney from Sacramento who represents the local California school district.
Before the justices determine the constitutional issues, they first must decide whether Newdow even has the legal right to bring the challenge to the school district's policy.

Newdow filed the lawsuit because he objected to his daughter's saying the daily ritual at her school in the city of Elk Grove near Sacramento in Northern California.

Because Newdow does not have legal custody of the girl on school days, when the pledge is recited, Olson argued the complaint should be dismissed for lack of jurisdiction.

Newdow said he only gets custody of his nine-year-old daughter every second weekend and she will not be in the courtroom.

"Of course I wanted to bring her," he said. "You don't believe it would be an opportunity to see your father argue before the Supreme Court of the United States in an historic case that will last forever?"

Another problem is the court could deadlock by a 4-4 vote as Justice Antonin Scalia has removed himself from the case. Scalia earlier made critical comments about a U.S. appeals court ruling that declared the pledge unconstitutional.

A 4-4 vote would uphold the appeals court ruling, but would not set a national precedent.

The court's decision is due by the end of June.

© Reuters 2004. All Rights Reserved.

[Timber Loftis]

Better start changing all the money, too. And all the courthouse seals.

[Rokenn]

Originally posted by Timber Loftis: Better start changing all the money, too. And all the courthouse seals.

Fine by me. They never should have added it back in the 50's anyway.

[Night Stalker]

And it really shouldn't be such a big deal since we've had 3 or 4 revisions to the circulating currancy in the last 5 years or so.

[Rokenn]

Also just think of all the coin and bill collectors who will buy those out of print bills and coins with 'under god' on them for double or triple thier face value [img]smile.gif[/img]

[Chewbacca]

Seems like Newdow made quite a strong plea and handled himself quite well in front of the court.

I like the idea of replacing the pledge with a recital of the preamble of the Constitution. Not only does the preamble predate the pledge by more than a century, it is has no mention of God. In fact, it seems to reinforce the fact that America is a secular nation with a secular government by the will and power of "We, the people", rather than "under" a potentially non-existent higher power.

We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

Anyway here is an article:

Link
********************


WASHINGTON, March 24 — Michael A. Newdow stood before the justices of the Supreme Court today, pointed to one of the courtroom's two American flags, and declared: "I am an atheist. I don't believe in God." With passion and precision, he then proceeded to argue his own case for why the daily recitation of the Pledge of Allegiance in his daughter's public school classroom violates the Constitution as long as the pledge contains the words "under 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 why 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.

That includes the justices, whom Dr. Newdow engaged in repartee that, while never disrespectful, bore a closer resemblance to dinner-table one-upsmanship than to formal courtroom discourse. For example, when Dr. Newdow described "under God" as a "divisive" addition to the pledge, Chief Justice William H. Rehnquist asked him what the vote in Congress had been 50 years ago when the phrase was inserted.

The vote was unanimous, Dr. Newdow said.

"Well, that doesn't sound divisive," the chief justice observed.

"That's only because no atheist can get elected to public office," Dr. Newdow shot back.

The courtroom audience broke into applause, an exceedingly rare event that left the chief justice temporarily nonplussed. He appeared to collect himself for a moment, and then sternly warned the audience that the courtroom would be cleared "if there's any more clapping."

Earlier, Dr. Newdow responded to Justice Stephen G. Breyer's suggestion that "under God'` had acquired such a broad meaning and "civic context" that "it's meant to include virtually everybody, and the few whom it doesn't include don't have to take the pledge."

Dr. Newdow replied: "I don't think that I can include `under God' to mean `no God.' I deny the existence of God." He added, "Government needs to stay out of this business altogether."

The current Pledge of Allegiance was defended by Solicitor General Theodore B. Olson and by Terence J. Cassidy, the lawyer for the Elk Grove School District in California, where Dr. Newdow's daughter attends elementary school. Both lawyers were appealing a decision won by Dr. Newdow in the United States Court of Appeals for the Ninth Circuit, in San Francisco. That court ruled last year that the addition of "under God" turned the pledge into a "profession of religious belief" and made it constitutionally unsuitable for daily recitation in the public schools.

One Justice, Antonin Scalia, was sharply critical of the appeals court's ruling in a speech he gave before the case reached the Supreme Court. As a result, Dr. Newdow asked Justice Scalia to recuse himself, and the justice complied, without comment, when the court accepted the case in October. His absence raises the prospect of a 4-to-4 tie, which would automatically affirm the Ninth Circuit's ruling without setting a binding precedent elsewhere.

Solicitor General Olson told the justices that the appeals court misunderstood the pledge. The phrase "under God" did not place the pledge in the category of religious expressions that the Supreme Court has found unconstitutional, he said, such as "state-sponsored prayers, religious rituals or ceremonies, or the requirement of teaching or not teaching a religious doctrine."

Rather, he 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 commented to Dr. Newdow some moments later.

Justice Souter's question for Dr. Newdow was whether, even assuming that school children were being asked "as a technical matter" to make a personal religious affirmation, it 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.' "

Before the justices can decide the merits of the case, Elk Grove Unified School District v. Newdow, No. 02-1624, they must resolve doubts about whether Dr. Newdow had standing to bring his lawsuit, either on his own behalf or on behalf of his daughter, who is now 9 years old. A court does not have jurisdiction in the absence of a plaintiff with standing.

Dr. Newdow was never married to the child's mother, Sandra Banning, who has custody and has told the court in a brief filed by Kenneth W. Starr, the former independent counsel, that she is giving her daughter a religious upbringing and wants her to say the pledge with "under God." The justices spent about half of the one-hour argument posing questions about standing and sparring with Dr. Newdow on the subject.

It remained unclear whether Dr. Newdow persuaded them, but he was obviously prepared for the argument. "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 stand up, put her hand over her heart, and say your father is wrong, which is what she's told every morning," he said.

"Well, she does have a right not to participate," Justice Sandra Day O'Connor observed. In 1943, 11 years before Congress added "under God," the court ruled that no one could be compelled to say the Pledge of Allegiance. That case was brought by Jehovah's Witnesses, whose religion forbids saluting the flag.

Dr. Newdow said opting out was a "huge imposition to put on a small child." He continued: "Government is doing this to my child. They're putting her 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."

Dr. Newdow, 50 years old, 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."

[Chewbacca]

"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."

I must follow up with another post....Whether Newdow wins or not, his closing statement, (emphasis above mine) is IMHO pure genius and straight to the heart of his case. I truly regret that cameras are not allowed in the SCOTUS, as I would love to see and hear what happened there today.

[Timber Loftis]

Well, I am an aetheist in support (basically) of the "under God" language. I feel that religion generally contributes to a healthy and more moral society. While I am not religious (in a traditional sense), I have a certain prejudice: while I trust myself to make moral decisions absent religion, I realize that a great many people rely on religion to dictate their morals and make them behave well. In short, I guess this is arrogance -- but I simply don't trust a great many people to act morally without someone telling them how to do so and threaten them with eternal repurcussions if they do not.

But, more objectively, I note that churches do a lot of good community work and promote the well-being of society.

Accordingly, while I realize the "under god" phrase was not originally intended, I nevertheless support it based on the social good that may flow from it.

And, whether or not you agree with my opinion, I AM an aetheist who supports the clause -- that's a fact that cannot be argued. Accordingly, I do not appreciate the assertion that the phrase offends aetheists. I can point to me and my wife as atheists the phrase does not offend. Accordingly, I don't appreciate this lawyer purporting to represent my interests when he clearly does not.

[Chewbacca]

Interesting opinion piece that argues based on precedent for removing the two words in question:

Link

NEW HAVEN, CONN. – The Supreme Court heard oral arguments Wednesday regarding whether it is constitutional for public schools to make students recite "under God" as part of the Pledge of Allegiance. The original ruling, which a federal appellate court handed down in 2002, forbade mandatory recitation of the phrase. Virtually the entire political galaxy condemned the decision. Experts predicted that, given public opinion, the Supreme Court would overturn it.
The high court will almost certainly capitulate to popular sentiment and let the phrase stand. But if the justices scrutinize the claims of the Bush administration, which is defending the God-infused pledge, and look at the history of the matter, they should reach a different verdict.


The immediate precedent is a 2000 Supreme Court ruling, Santa Fe Independent School District v. Jane Doe, which held that prayers at school athletic events - even voluntary, student-led ones - are unconstitutional. Such prayers, the court ruled, force students to choose between avowing beliefs they don't possess or publicly absenting themselves from the group.

The only reason this precedent might not pertain would be if the Bush administration can prove that the phrase "under God" doesn't amount to a profession of religious belief, the way a prayer does. Thus, the administration has taken to arguing that the two words are just a ritualized "backdrop," bereft of religious content.

History, however, shows the reverse. An examination of the context in which Congress amended the pledge in 1954 to include the phrase proves that the very purpose was to promote religion. It's often forgotten that the pledge originally did not mention God. Francis Bellamy, who wrote the vow in 1892, intended it as an oath of patriotism, not faith.

But during the Red Scare of the 1950s, America underwent a bout of religiosity. Many Americans argued that the US had to distinguish itself from the Soviet Union, not just through its democracy, freedoms, and capitalist economy - which one might think were distinctive enough - but also through its belief in religion, in contrast to the Soviet Union's official atheism.

Hence, President Eisenhower began hosting prayer breakfasts. Congress created a prayer room in the Capitol. "In God We Trust" - already on coins - was added to all paper money and also became the country's official motto, replacing "E Pluribus Unum." Legislators proposed constitutional amendments to declare that Americans obeyed "the authority and law of Jesus Christ."

The drive to insert "under God" into the pledge, first proposed in April 1953 by a congressman from Michigan, belonged to this campaign. The next February, the Rev. George M. Docherty, minister of the church Eisenhower attended, delivered a homily urging the inclusion of the words. He said the change was needed to differentiate the US from what were often called "the godless Communists." "I could hear little Moscovites [sic] repeat a similar pledge to their hammer and sickle flag with equal solemnity," he said.

Eisenhower, who was sitting in his pew, agreed. So did most of Congress, which set to work on a new law. The purpose was clear: to "acknowledge," as the legislative history of the act stated, "the dependence of our people and our Government upon ... the Creator ... [and] deny the atheistic and materialistic concept of communism." Eisenhower signed the bill on June 14, 1954 - Flag Day - offering similar sentiments.

All of this was of dubious constitutionality even in 1954. After all, America's founders deliberately made no reference to God or religion in the Constitution except to forbid religious tests for office. But it wasn't until 1971, in Lemon v. Kurtzman, that the Supreme Court explicitly clarified that the government may not take any action that would advance religion.

Since then, a series of rulings have refined what kinds of public support for religion are and are not permissible. Especially notable was Lee v. Weisman in 1992, which held that prayers at public school graduations, even if technically voluntary, in effect coerced children into praying. The 2000 Santa Fe ruling elaborated upon Lee v. Weisman.

Given these rulings and the history of the decision to put "under God" in the pledge, the Supreme Court should, in theory, have an easy time this week. The only intellectually honest course is to forbid the public-school recital of the religious version of the oath. That verdict won't be popular. But then again, the need to uphold rights against popular pressures is the reason we have an independent judiciary in the first place.

[Chewbacca]

Another perspective:

Link


Tom Phelan is an 82-year-old veteran of World War II who salutes the flag at ceremonies in the Eastern Washington city that he calls home.

He is also a Buddhist teacher who has signed a brief with the U.S. Supreme Court to keep the words "under God" out of the Pledge of Allegiance.

"By repeating the pledge over and over, children's minds are being conditioned to accept God as a reality," Phelan said from his Walla Walla home. "I think that's what's happening. The government doesn't have to back any religion."

In part, Phelan's opposition to the words stems from a lifetime of independent thinking. He was, after all, the third-grader in a Connecticut parochial school who argued with a nun, then announced to his classmates: "Nobody is going to make a Catholic out of me."

Those two words in the pledge also run afoul of Phelan's faith, which developed from years of spiritual searching that began 70 years ago in a letter from a pen pal.

He runs A Few Simsapa Leaves Buddhist Center in Walla Walla. His faith, he said, centers on meditation, awareness, clarity and calmness, but not God.

"Christians put (those words) in to say that this nation is under God. I don't believe in a God," he said. "According to Buddha, everything is impermanent. So, therefore, there cannot be a permanent God."

Christians and other religious groups disagree.

Supporters of the words point out that no one is forced to say the words, which were inserted in the pledge in 1954 with religious backing.



Supporters also say the words relate, in general, to how religion has influenced history.

Most Americans want "under God" in their pledge. An Associated Press poll showed nearly nine out of 10 want the pledge left alone.

But Tom Phelan is the one in 10, and he is joined by 3 million to 4 million Buddhists, atheists and others.

Two Buddhist temples -- one in Auburn and one in Richland -- also have signed a U.S. Supreme Court brief opposing the language. Some Seattle atheists have signed another brief.

Washington state students may recite the pledge but aren't compelled to do so, according to the Office of Superintendent of Public Instruction.

Opponents of "under God," say that a student who stays silent can end up being accused of being un-American and being ostracized.

Opposing the words has its costs outside of the classroom, too. Phelan said people have already told him that he should repent or face burning in a "lake of hell."

But Buddhism and an independent spirit help take the sting out of critics' words, he said.

The religion, which has a 2,500-year history, teaches followers that there was a person who later became Buddha and who experienced "enlightenment" and "awareness" without the help of a God.

Buddhists seek awareness and what is "true" -- without focusing on whether a God exists or not.

Phelan's path to being exposed to Buddhism began in the 1930s, when he corresponded with a pen pal in Japan.

After serving in World War II, he was stationed at a U.S. air base near Tokyo.

Using an envelope with his pen pal's address, Phelan eventually tracked his friend down, and they talked about religion.

"I had never been exposed to it. It made me curious," he said. "The main thing he told me is that it's to get stress out of your life, to be good and to be calm."

And Phelan had stress. World War II strained his life -- and the lives of thousands of military personnel and civilians. Then there was his wife back home he worried about.

When he could, Phelan visited some Buddhist monks at a temple near his base in Japan.

After returning to the United States, he and his wife lived in Oregon in the 1970s.

The two later moved to Walla Walla so his wife could be closer to her mother.

Phelan found comfort in Walla Walla, especially in the Whitman College library where he delved into Buddhism.

In the late 1990s, his interest took him to Thailand and India to talk with Buddhist monks at barren temples.

Monks, both from the United States and Asia, have now visited his center in Walla Walla.

Phelan still attends veterans ceremonies in Walla Walla and honors the flag. But when those gathered recite the pledge, he stays silent. Other times, he does not recite "under God."

Some veterans snicker at what he does.

He knows the snickering could grow louder, depending what the Supreme Court does. But he doesn't worry.

"I'm still calm."