The atheists just had their day before the U.S. Supreme Court, but they are not in good spirits about it. Their attempt to strike "under God" from the Pledge of Allegiance now looks like a legal boomerang.
Michael Newdow, an emergency room physician with a law degree, a non-custodial parent of a 9-year-old daughter with an ax to grind with monotheistic religion, decided he wasn't happy about students at his daughter's school standing to say the pledge each morning. Newdow contends the words "under God" in the pledge violate his daughter's First Amendment rights because they constitute the establishment of religion and prayer in public schools.
Newdow sued and won in the 9th U.S. Circuit Court of Appeals in San Francisco, where a three-member panel ruled 2-1 that the words "under God" in the Pledge of Allegiance are unconstitutional. The Bush administration appealed Newdow's suit, Elk Grove Unified School District vs. Newdow, to the U.S. Supreme Court. On March 24, before eight of the nine justices, Newdow, representing himself, argued his case. He was peppered with questions by justices in what court observers said was an unusually spirited exchange.
The girl's mother, Sandra Banning, to whom a California court had previously awarded sole custody, is a born-again Christian who regularly attends church and has no problem with her daughter reciting the pledge. A lower federal court threw out Newdow's suit because he does not have custody of his daughter. The Supreme Court could follow suit, or the justices could decide, once and for all, if the words "under God" are enough to change the meaning of the Pledge of Allegiance from a patriotic oath into a prayer.
On the same day Newdow argued his case, a poll by the Associated Press found that 87 percent of Americans want the phrase "under God" to remain in the Pledge of Allegiance. Those particular words, used by Abraham Lincoln in his Gettysburg Address, describe perfectly who we are as a people.
Before going insane, Friedrich Nietzsche declared, "God is dead." Atheists want the Supreme Court to make it official. But the public will not stand for it. A movement is afoot in Congress, as allowed by the Constitution, to take authority away from the federal courts over this issue.
The liberal justices on the Supreme Court are in a quandary. Over the past several decades, they have again and again censored and excluded prayer and morality from public life and schools.
The Supreme Court in 1962 banned prayer from public schools, and now schools are awash in drugs, sex, and violence. The courageous Alabama Supreme Court Chief Justice Roy Moore was even removed from office for displaying the Ten Commandments in the rotunda of the Alabama State Courthouse.
A moment of silence in school? An invocation at graduation? A prayer before a football game? No, no, no, said the Supreme Court. In no other area of law have liberals enjoyed such a run of victories over so long a time.
The religion-haters' mischievous use of the federal courts has persisted because the U.S. public was not paying attention and because the legal community has fostered the myth that the Constitution is whatever the Supreme Court says it is. Newdow looked at the long series of pro-atheist court rulings and concluded that precedents now require removing "under God" from the Pledge of Allegiance.
But Newdow has probably overplayed his hand by his frontal attack on God instead of contenting himself with the incremental erosion that has been so successful. Newdow's more experienced anti-religious and secularist elders, who quietly agree with his goal and his arguments, lament that he will lose. Newdow probably thought he was scoring points in his oral argument before the Supreme Court when he attributed the unanimous congressional approval of "under God" to the lack of atheists in Congress. But the spontaneous applause among court spectators confirmed that most Americans do not want atheists or atheism running our country.
Newdow's challenge to God lays bare how badly the left wants to banish religion and morality. His mistake was to take too seriously prior court decisions that irrationally prohibited acknowledgment of God.
In serving up the reductio ad absurdum of the atheists' agenda, Newdow has enabled the public to focus on liberal intolerance, and the impending Supreme Court decision will be big news. The liberal media are uncomfortable with the hand Newdow has dealt them.
The media are eager to protect Sen. John Kerry, D-Mass., the presumptive Democratic nominee for the 2004 presidential election. They don't want him to suffer the same fate as Michael Dukakis, whose veto of a Massachusetts pledge law helped George Herbert Walker Bush win the presidency in 1988. Kerry, seeking the same office that Lincoln held, mustered all the eloquence in his body in 2002 to declare to a television news crew in Boston that removing "under God" from the pledge was "half-assed justice ... the most absurd thing. ... That's not the establishment of religion."
The Supreme Court is faced with the choice between abandoning its misguided precedents or affirming them, which would plunge the justices into the angry sea of public scorn and congressional retaliation. Justice Antonin Scalia has recused himself, so the court's liberals can't depend on their fellow conservatives to save them from folly by outvoting them.
Maybe the anti-God justices will lose nerve and hide behind Newdow's lack of legal standing: neither he nor a child under his custody was ever exposed to the pledge. Or maybe the court will duck the dilemma by declaring that "under God" has no religious meaning, a ruling that would outrage Americans who are quite sure that God is alive and well.
The lawsuit to censor God out of the pledge and American public life is looking no better than the failed attempt to restrict the showing of Mel Gibson's popular "Passion of the Christ." God is not so easily defeated in America.
Phyllis Schlafly is a national leader of the pro-family movement, a nationally syndicated columnist and author of Feminist Fantasies.
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