The Pledge_ A History of the Pledge of Allegiance - Jeffrey Owen Jones [72]
In the context of the Pledge, the statement that the United States is a nation “under God” is an endorsement of religion. It is a profession of a religious belief, namely, a belief in monotheism. . . . The text of the official Pledge, codified in federal law, impermissibly takes a position with respect to the purely religious question of the existence and identity of God. . . .
In addition, the court declared that having schoolchildren recite the Pledge was coercive and that it put children into a position of an “unacceptable choice between participating and protesting.”
Few decisions on this appellate level have ever gotten as much immediate political attention as this one did. Congressmen tumbled out of the Capitol in Washington, D.C., literally elbowing each other aside to get to a photogenic position on the Capitol steps to condemn the court’s decision and to recite the Pledge for any news camera available.
The Dukakis lesson had been learned. And it was, after all, a congressional election year. Silence on the matter could only be considered anti-Pledge. Movement began almost immediately to introduce a constitutional amendment to protect the Pledge—and its “under God” phrase—from any threat, judicial or legislative.
The case was actually sent back to the Ninth Circuit two more times.
The first rehearing of the case involved the fact that Newdow was not actually married to the child’s mother. He also did not have full custody of the child. The mother, Sandra Banning, disagreed with Newdow’s position and wanted her daughter to believe in God and to recite the Pledge. The mother was previously granted full legal custody of the child, meaning the mother had the sole right to make decisions about the child’s education and welfare. This first return to the Ninth Circuit was to decide whether or not Newdow even had the right, or the standing, to bring the question of the Pledge to court. The court ruled that Newdow did indeed have the standing to object to unconstitutional government action affecting his child, even though he was a noncustodial parent.
The Elk Grove School District appealed again to the Ninth Circuit asking this time for an en banc court hearing—meaning a hearing by all the member judges of the court instead of just a panel of judges as had originally decided on the case. The motion was denied.
With a considerable amount of political support, including a strong statement against the court from President George W. Bush, the Elk Grove School District pushed the case up to the U.S. Supreme Court. The Supreme Court agreed to hear the case. Oral arguments were presented on March 24, 2004.
Unlike the Jehovah’s Witnesses, who received financial and legal support from such groups as the ACLU, Newdow weathered his suit almost alone. The ACLU at first didn’t think his case was winnable and later decided that the issues were so potentially divisive during a presidential election that raising them would undermine their larger political goals. Newdow solicited help from the American Jewish Congress (AJC), which also refused to help, even though the group had been known to be strong supporters of the separation of church and state. Even the Americans United for Separation of Church and State (AU) refused Newdow’s request for support because of a professed lack of resources as well as uneasiness about the political ramifications. Eventually the ACLU and the AU joined in presenting a “friend of the court” brief in support of the Newdow position.
Still, when Newdow entered the courtroom, he was pretty much on his own—and only eight of the nine Supreme Court justices were ready to hear the case. Justice Antonin Scalia recused himself at Newdow’s request because Scalia had publicly criticized the Ninth Circuit decision in a speech the year before. There was the possibility, therefore, that the Court could split 4–4 and end up making no decision at all.
Scores of briefs were filed with the Court representing