Pledge Case Exerpts

Exerpts

JUSTICE JOHN PAUL STEVENS: Do you think that the pledge has the same meaning today as when it was enacted - when the words, under God, were inserted into the prayer, into the pledge?

MR. OLSON: It's an important question because the reference to under God in the pledge, as numerous decisions of this court have indicated in dicta, what as a part of a thought process of coming about to the conclusion that it is an acknowledgment of the religious basis of the framers of the Constitution, who believed not only that the right to revolt, but that the right to vest power in the people to create a government became, came as a result of religious principles. In that sense, the Pledge of Allegiance is today, that has that same significance to this country as it did in 1954 when it was amended.

But as this court has also said, and that's the other part of my answer to your question, this court has also said the ceremonial rendition of the Pledge of Allegiance in context repeatedly over the years has caused -- would cause a reasonable observer familiar -- as this Court's First Amendment Establishment Clause jurisdiction points out -- would cause a reasonable observer to understand that that is -- this is not a religious invocation. It is not like a prayer, it is not a supplication, it's not an invocation. It is --

JUSTICE RUTH BADER GINSBURG: Your argument is that there's a stronger case now than there would have been 50 years ago?

Which, translated from polite supreme court justice speak into plain English means, "You're rambling and incoherent, you dunderhead. Could you please just make an argument?"

MR. OLSON: Yes, Justice Ginsburg, and that is for many reasons, for -- because of the reason that I just made...

There was reason in there? I must've missed it.

MR. NEWDOW: Well, I'm not sure this isn't a prayer, and I'm -- I am sure that the Establishment Clause does not require prayer. President Bush, and this is in the Americans United brief, stated himself that when we ask our citizens to pledge allegiance to one nation under God, they are asked to participate in an important American tradition of humbly seeking the wisdom and blessing --

JUSTICE O'CONNOR: Yeah, but I suppose reasonable people could look at the pledge as not constituting a prayer.

MR. NEWDOW: Well, President Bush said it does constitute a prayer.

CHIEF JUSTICE WILLIAM H. REHNQUIST: Well, but he -- we certainly don't take him as the final authority on this.

(Laughter.)

Penny for your thoughts, Mr. Rehnquist? I'd bet dollars to donuts he was thinking, "Well, but he -- that intellectual dwarf can hardly be considered a reasonable person."

...JUSTICE DAVID H. SOUTER: What do you make of this argument? I will assume that if you read the pledge carefully, the reference to under God means something more than a mere description of how somebody else once thought. We're pledging allegiance to the flag and to the republic. The republic is then described as being under God, and I think a fair reading of that would -- would be I think that's the way the republic ought to be conceived, as under God. So I think -- I think there's some affirmation there. I will grant you that.

Finally! Someone on the court acknowledging that "under God" is a governmental affirmation of the existence of God -- which Atheists do not believe. So, by nature, a federal affirmation of the existence of any god is exclusionary to Atheists. It is, in essence, an argument that Atheists are not part of this nation. But, maybe the Constitution doesn't guarantee us the right to feel as though we aren't being excluded. But I would argue that the Constitution does intend to include us. Then again, this case appears to be about nit-pick things like whether or not Newdow can even argue the case based on his not being the primary guardian of the child. I think that ought to be irrelevent. I don't have any kids, and the pledge offends me. Do I have less standing on the issue because I have no children in public school? I shouldn't. Especially if the issue is whether or not the phrase "under God" in the pledge is Constitutional. If the issue is whether or not the pledge should be recited in school, then I'm sure there's some legal statute which grants only parents of children in public schools with standing on the issue.

What do you make of the argument that in actual practice the affirmation in the midst of this civic exercise as a religious affirmation is so tepid, so diluted then so far, let's say, from a compulsory prayer that in fact it should be, in effect, beneath the constitutional radar. It's sometimes, you know the phrase, the Rostow phrase, the ceremonial deism.

What do you make of that argument, even assuming that, as I do, that there is some affirmation involved when the child says this as a technical matter?

MR. NEWDOW: I think that that whole concept goes completely against the ideals underlying the Establishment Clause. We saw in Minersville v. Gobitis and West Virginia v. Barnette something that most people don't consider to be religious at all to be of essential religious value to those Jehovah's Witnesses who objected. And for the Government to come in and say, we've decided for you this is inconsequential or unimportant is an arrogant pretension, said James Madison. He said in his memorial --

JUSTICE SOUTER: Well, I think the argument is not that the Government is saying, we are defining this as inconsequential for you. I think the argument is that simply the way we live and think and work in schools and in civic society in which the pledge is made, that the -- that whatever is distinctively religious as an affirmation is simply lost. It -- it's not that the -- that the Government is saying, you've got to pretend that it's lost. The argument is that it is lost, that the religious, as distinct from a civic content, is close to disappearing here.

I can't believe a Justice of the Supreme Court is actually arguing that words have no meaning. Or even that two words in the context of the pledge have no meaning. It isn't a far leap, from that argument, to say that if those two words have no meaning because of their rote repetition, that all words repeated often enough, for long enough have no meaning. Then what is the point of words? And shouldn't Christians everywhere be outraged by the court deciding for them that the words "under God" have no meaning? To Christians, the words have significant meaning. The point is that no one, especially the government, can say "these words do or don't have meaning for you or anyone else".

...JUSTICE BREYER: So it's not perfect, it's not perfect, but it serves a purpose of unification at the price of offending a small number of people like you. So tell me from ground one why -- why the country cannot do that?

Well if that doesn't fly right in the face of the whole intent of setting up the government of this country the way it was, I don't know what is. The constitution isn't there to protect the views of the masses at the expense of "a small number of people", it's there to protect that small number of people from the imposition of the masses. I can't believe a SC Justice would say such a thing!

MR. NEWDOW: Well, first of all, for 62 years this pledge did serve the purpose of unification and it did do it perfectly. It didn't include some religious dogma that separated out some -- Again, the Pledge of Allegiance did absolutely fine and with -- got us through two world wars, got us through the Depression, got us through everything without God, and Congress stuck God in there for that particular reason, and the idea that it's not divisive I think is somewhat, you know,

idiotic?

shown to be questionable at least by what happened in the result of the Ninth Circuit's opinion. The country went berserk because people were so upset that God was going to be taken out of the Pledge of Allegiance.

CHIEF JUSTICE REHNQUIST: Do we know -- do we know what the vote was in Congress apropos of divisiveness to adopt the under God phrase?

MR. NEWDOW: In 1954?

CHIEF JUSTICE REHNQUIST: Yes.

MR. NEWDOW: It was apparently unanimous. There was no objection. There's no count of the vote.

CHIEF JUSTICE REHNQUIST: Well, that doesn't sound divisive.

(Laughter.)

MR. NEWDOW: That's only because no atheist can get elected to public office.

(Applause.)

CHIEF JUSTICE REHNQUIST: The courtroom will be cleared if there's any more clapping. Proceed, Mr. Newdow.

In other words, "I am the Almighty Chief Justice! You may laugh at my jokes, but you may NOT applaud anyone with a viewpoint different from mine!

JUSTICE KENNEDY: Well, now, it -- it -- let's suppose, I thought the case turned on whether this was a religious exercise.

Seriously? He doesn't see "under God" as being religious? How do these people get to such a high position in the court system??

MR. NEWDOW: I think it definitely is, and it is because the two words are, under God, and I can't see of anything that's not religious, under God...

...It fails the endorsement test, it fails the outsider test. Imagine you're this one child with a class full of theists and you have this idea that you want to perhaps at least consider and you have everyone imposing their view on you, it fails every test this Court has ever come up with, and there's a principle here and I'm hoping the Court will uphold this principle so that we can finally go back and have every American want to stand up, face the flag, place their hand over their heart and pledge to one nation, indivisible, not divided by religion, with liberty and justice for all.

QUESTION: Thank you, Mr. Newdow.

TERENCE J. CASSIDY, LAWYER FOR THE SCHOOL DISTRICT:

The Pledge of Allegiance in grammar schools, in public schools, is part of a teaching program, and that's what we're here about, to talk about the educational upbringing of a child, and it has to do with national unity and citizenship of our young students.

That's the problem: it's them (Theists) wanting to indoctrinate everyone according to their beliefs. The fact is that removing a religious phrase from, what should be, a religion neutral pledge won't affect the "national unity and citizenship of our young students" in a society governed by secular laws.