Supreme Court hears atheist on pledge

WASHINGTON -- The Supreme Court, facing for the first time a constitutional challenge to the Pledge of Allegiance, dropped numerous hints yesterday that the phrase added 50 years ago saying the nation exists "under God" would survive the legal test.

The justices, appearing deeply interested in promptly resolving the highly charged case of an atheist's protest over the recitation of that phrase by public school children, spent a spirited hour exploring ways to settle the issue. The courtroom was filled to capacity, and demonstrators on both sides of the dispute staged noisy demonstrations outside.

The atheist, Michael A. Newdow of Sacramento, a novice advocate before the court, held his own with a well-rehearsed argument.

"I am an atheist," he said in his opening. "I don't believe in God. And every school morning, my child is asked to stand up, face that flag, put her hand over her heart, and say that her father is wrong."

At one point, his comment that atheists could not get elected to public office drew applause, which is very rare in the courtroom. Chief Justice William H. Rehnquist threatened to clear the courtroom if there was "any more clapping."

The occasion was mostly solemn. At one point, Justice Anthony M. Kennedy commented that the court was being asked "to exercise the extraordinary, the breathtaking power to declare federal law unconstitutional." Kennedy warned Newdow that his young daughter would be the one who would have to "face the public outcry, the public outrage," if the pledge as written were nullified.

Newdow insisted, however, that he was making his challenge solely to vindicate his own rights, including the right not to have his daughter told daily that he is wrong in his beliefs.

While the court seemed inclined to find that Newdow had a personal right to bring his challenge, an issue that took up more than half of the allotted 60 minutes, his core complaint that the "under God" phrase means the government is telling schoolchildren to believe in God did not seem to fare as well.

Rehnquist commented: "I suppose reasonable people could look at the pledge as not constituting a prayer." When Newdow countered that President Bush has written letters to say the pledge "does constitute a prayer," Rehnquist replied: "Well, we certainly don't take him as the final authority on this."

Justice Ruth Bader Ginsburg said the phrase "under God" is "two words sandwiched in the middle of something, and the child doesn't have to say those words." But Newdow said "the government is not allowed to take a position on that. Government is saying there's a God."

Justice Sandra Day O'Connor noted that the court had struck down religious exercises in schools when they involved prayers, as such, and suggested recitation of the pledge was a different kind of exercise.

O'Connor added: "We have so many references to God in our daily lives in this country. We opened this session of the court today" with the marshal's cry, "God save the United States and this honorable court!" She also noted that everyone carries money with the slogan, "In God We Trust."

Newdow, who in other settings has said he objects to those references too, chose not to contest them before the court, saying they were different from the pledge, which he called a government-enforced "affirmation" of a belief in God. He also passed up a chance to challenge the singing of "God Bless America" in school programs, if it were not done too often.

Justice Stephen G. Breyer suggested that the use of the word God may be understood as a reference to a "supreme being," a phrase broad enough to allow those who do not believe in God in a religious sense to put a label on their own beliefs in something basic. He wondered if "God" could also be understood as all-inclusive, and thus not objectionable to atheists.

Newdow said no, commenting: "I don't believe that I can include `under God' to mean no God, which is exactly what I think."

Justice David H. Souter said he thought Newdow had a point in arguing that the pledge is "some affirmation" of God, but suggested that the phrase at issue was "so tepid, so diluted" that the religious meaning "is close to disappearing here," so it might not be unconstitutional, as a compulsory prayer would be.

"It's not the view I take," Newdow said. "The government says, Newdow, your religious belief system is wrong."

Noting the outcry that came when a federal appeals court ruled against recitation by public schoolchildren of the "under God" phrase, Newdow said that "shows that people still want their religious beliefs in our government." A majority, he said, was using "the machinery of the state to practice its beliefs."

The court heard the case with only eight justices on the bench. Justice Antonin Scalia disqualified himself for public comments he had made criticizing the lower court ruling.

The task of defending the pledge as written was split between US Solicitor General Theodore B. Olson and Terence J. Cassidy, a lawyer for the Elk Grove School District near Sacramento, where Newdow's daughter is now in the third grade.

Although Olson and Cassidy had to spend much of their time fending off questions from the justices about their argument that Newdow had no legal right to challenge the pledge, both managed to spell out defenses of it.

Olson said that 14 justices of the court, over a period of years, had remarked that the pledge was not like a prayer in a public school setting. The "under God" reference, he argued, is "an acknowledgment of the religious basis of the framers of the Constitution."

Cassidy contended that the school district does not require recitation of the pledge to promote a religious cause, but as part of "a teaching program" so children learn about "national unity and citizenship." Children are not required to say the "under God" phrase, he said, and teachers are required to tell students to respect those with different beliefs. The court is expected to decide the case by early summer.