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
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
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
"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.