Debra J. Saunders
A three-judge panel of the Ninth Circuit Court of Appeals ruled 2-to-1 last month that the Pledge of Allegiance is unconstitutional because it includes the phrase "under God." The nation cringed as the San Francisco-based court upheld the right of atheists to not hear other people say "under God" at school. Now the court probably is flinching as the public gets a hard look at Michael Newdow, the Sacramento doctor/attorney who filed the lawsuit against the Elk Grove Unified School District. In his brief, Newdow calls himself an atheist. He argued that his 8-year-old daughter is injured when she is compelled to "watch and listen as her state-employed teacher in her state-run school leads her classmates in a ritual proclaiming that there is a God." Yet in his bio, he says he started "his first religious institution while in junior high school," that he is an ordained minister at the Universal Life Church. "In 1998," he writes, "he obtained his Doctor of the Universe Degree." (If he got a master's degree, would he be a Master of the Universe?) Last week, the mother of Newdow's child, Sandy Banning, told Fox News that her daughter is not an atheist and loves to recite the pledge. The girl even told her mother: "I'm still going to say, 'One nation under God.' I'll say it quietly so no one will know I'm breaking the law." (Aww.) Banning also said that she has sole legal custody of her daughter. If that is true, Newdow may have no legal standing to bring the case to court. Now he looks like an atheist heel who used his pledge-loving daughter to quash speech she cherishes. Even before legal eagles learned that Newdow may have no standing, most predicted that the Ninth Circuit would impanel a larger group to look at the case and probably would overturn the ruling written by Judge Alfred Goodwin. The "standing" controversy only makes an upset of the ruling more likely. Worst of all, the court didn't need to rule as it did. Goodwin noted that Newdow named as defendants not only the Elk Grove schools, but also -- very inappropriately -- President Clinton and Sacramento schools (because he might send his daughter there). The odd brief featured a list of "notable individuals reputed to be atheists" -- including Richard Burton and Howard Hughes. Case closed. "I thought that the issue should have been dealt with by the court in a very summary fashion, in the general category of 'too silly'," said former U.S. Attorney Joe Russoniello. But nothing's too silly for this court. Newdow had argued that the First Amendment clause prohibiting the government from establishing a religion means that the state can't mandate a pledge with the phrase "under God." But as dissenting Judge Ferdinand Fernandez wrote, "Such phrases as 'in God we trust' or 'under God' have no tendency to establish a religion in this country or to suppress anyone's exercise, or non-exercise, of religion, except in the fevered eye of persons who most fervently would like to drive all tincture of religion out of the public life." Santa Clara University School of Law professor Dorothy Glancy agrees. The establishment clause, she noted, "means we're not supposed to be establishing a state religion, and we're not doing that." Meanwhile, at Elk Grove, superintendent David W. Gordon is suitably philosophical. A stay allows students to recite the pledge. The lawsuit, he said, cost the district about $6,000 to $7,000 so far. "It's covered by our liability policy," Gordon noted, "because (Newdow) alleged that there was harm to the child." Newdow petitioned the court to reimburse him for his "attorney's fees" -- to pay him to act as his own attorney and allege dubious harm. "It's a wonderful country because this man has the right to push his argument, and we have a right to defend it," said Gordon. He sees a lesson for students about America. In a free country, a "free thinker" is free to hide behind his second-grade daughter in his quest to outlaw speech that he has decided he has a right not to hear. The ugly part is that he found two judges in a high court to back him up.

Debra J. Saunders


 
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