Atheist’s stellar performance may not translate into win

Thursday, March 25, 2004

WASHINGTON — Leading up to his argument before the Supreme Court yesterday, some of Michael Newdow’s allies worried that he might turn out to be his own worst enemy.

Newdow, the California atheist who challenged the words “under God” in the Pledge of Allegiance, was viewed by many as too emotional and too much of a novice to argue his own case before the Court.

But after weeks of practice and months of intense study, Newdow put in a stellar performance before the high court, parrying justices’ questions and sticking with his strategies with more skill than many veteran advocates.

As surprising and effective as his argument in Elk Grove Unified School Dist. v. Newdow was, the question now is: Will it matter? Most justices, thrust into the highly charged debate over the pledge by Newdow’s case, seemed eager either to avoid the issue or to join the lopsided majority of Americans who tell pollsters the pledge should remain as it is.

During much of a dramatic hour of oral argument, justices focused on an issue that could enable them to sidestep altogether the question of whether “under God” violates the separation of church and state: whether Newdow, because of an ongoing custody dispute over his daughter, has standing to challenge the pledge as recited in schools. Some, but not all, justices seemed to think that Newdow had a valid stake in his daughter’s recitation of the pledge even if he did not have complete custody over his daughter, whose name has not been mentioned in court papers.

On the merits of the case, several justices appeared interested in minimizing the religious significance of the words “under God” as a way of upholding the pledge without undermining the Court’s establishment-clause doctrine.

Justice David Souter wondered aloud whether the daily recitation of the pledge makes the religious affirmation implied by the words “so diluted, so far from a compulsory prayer, that it should be beneath the constitutional radar.”

But Newdow disagreed, and he did not hesitate to say so. He replied that the words “under God” are far from diluted in his view. “I am getting slapped in the face every time” his daughter recites the pledge, he said calmly.

In that exchange and others, Newdow showed he had mastered the case as well as his emotions, making a forceful presentation that could teach veteran advocates some new argument tactics.

Newdow also leavened his legal arguments with personal comments — a risky gambit with the Supreme Court, but one that did not seem to do much damage and may even have helped. His “slap in the face” comment conveyed the injury that he felt, personalizing the dispute in a way that a veteran lawyer would be reluctant to do. At another point, sounding like an engaged parent, Newdow referred to his 9-year-old daughter. “I love that she is being exposed” to different cultures and religions in school, but not when she is “coerced” by government to recite the pledge, he said.

“He did a magnificent job,” said the Rev. Barry Lynn, executive director of Americans United for Separation of Church and State. Lynn is a Newdow supporter who nonetheless had been so worried about Newdow’s advocacy that he asked the Court last November to give his organization some of Newdow’s argument time. The Court rejected the request, so Newdow was on his own for a half hour, unaccompanied at counsel’s table.

Even Sandra Banning, the mother of Newdow’s daughter — he and Banning never married — had complimentary words after the oral argument: “Michael did very well.” She added, “As a mom, Christian, and American, I am hoping the Court will resolve this issue today and that it is the last time as a nation” that the issue is raised.

Banning filed a brief in the case challenging Newdow’s standing and supporting the pledge as is. Newdow, who prevailed earlier when the case was before the 9th U.S. Circuit Court of Appeals, himself seemed pleased after yesterday’s arguments, predicting — as he has all along — the he will win unanimously. “I didn’t feel nervous. They’re people, and it was like a conversation,” Newdow said during a press conference outside the Court. Before and after the arguments, hundreds of demonstrators supported and attacked Newdow’s position that the pledge amounts to a religious exercise.

The Court session began with two references to God — first with the court marshal’s opening cry that ends with “God Save the United States and this Honorable Court,” and then with the clerk swearing in new members of the Supreme Court bar by asking them to promise to uphold the Constitution, “so help you God.”

Significantly, when Chief Justice William Rehnquist called the case of Elk Grove Unified School Dist. v. Newdow, Justice Antonin Scalia stood up and walked off the bench, signaling his recusal. Newdow, in a risky maneuver, had asked Scalia to recuse himself because of a speech he gave last year that appeared to tip his hand on the pledge case. Without Scalia, who usually dominates questioning during oral argument, Newdow and the other advocates spoke for unusually long stretches of time without interruption.

Newdow went up against U.S. Solicitor General Theodore Olson, as well as Terence Cassidy, a lawyer for the school district. Olson and Cassidy each argued for 15 minutes, and each led off by challenging Newdow’s standing.

“The ultimate decision-making authority is the mother,” said Cassidy. “The school district must look only to one decision-maker. It is the only way a school district can function.” Cassidy barely mentioned the pledge at all, and all of the questioning from the bench related to standing.

Olson did not switch gears and talk about the pledge until well into his argument. He described the pledge as a “patriotic exercise … not a religious exercise.” Especially after 50 years, Olson said, no “reasonable observer” would interpret the pledge’s “under God” phrase as a religious invocation. The words “under God,” inserted into the pledge by Congress in 1954, are descriptive, Olson said, and students are not required to say them.

Newdow began his argument by turning slightly to face the flag in the corner of the Court chamber and mimicking what students do when they recite the pledge in school. Every day, he said, his daughter is coerced to place her hand over her heart and declare, in effect, that “her father is wrong” in his atheist views.

“She does have a right not to participate,” Justice Sandra Day O’Connor said.
Newdow quickly replied that in the 1992 graduation prayer case Lee v. Weisman, the Court found the atmosphere in schools “coercive” for students who might otherwise not participate.

O’Connor said, “But that was a prayer,” to which Newdow replied, “I’m not sure this (the Pledge) isn’t a prayer.”

Said Rehnquist, “It doesn’t sound anything like a prayer.”

The words “under God” are “as purely religious as you can get,” said Newdow, not retreating. Later, Newdow said he had also calculated that the two words “under God” amount to a bigger percentage of the text of the pledge than the two-minute graduation prayer in Lee v. Weisman was in that school’s graduation ceremony.

Newdow was quick to respond when Rehnquist tried to counter his point that the inclusion of “under God” in the pledge was divisive. What was the vote in Congress in 1954 to include the words? Rehnquist asked. It was unanimous, said Newdow.

“That doesn’t sound divisive,” Rehnquist said, and Newdow shot back, “That’s only because no atheists can be elected to office.”

Newdow’s reply triggered applause from the audience, which is almost never heard in the Supreme Court chamber. It was unclear whether the applause was for Newdow’s rejoinder or for the fact that atheists don’t get elected, but in any event Rehnquist angrily admonished the audience that the courtroom would be cleared if any more clapping occurred.

As the courtroom settled down, Newdow resumed his attack, telling the Court that, in fact, eight states still have laws against atheists holding office — another point that an advocate other than Newdow might not have made.

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