One Nation, Divisible Under God

Joe Forkan

Penned in 1892 by a socialist minister turned journalist named Francis Bellamy, the Pledge of Allegiance originally read: "I pledge allegiance to my flag and to the republic for which it stands -- one nation, indivisible -- with liberty, and justice for all."

But Broward County's public schoolchildren -- who are led to recite the pledge every morning by school board decree -- say more than that, of course. Through the years the pledge has been altered to include the United States of America and God. The former was added in the '20s as a reminder to new immigrants of just whose flag they were pledging allegiance to. And in 1954, when the U.S. was frostbitten by the Cold War and godless communists were invading its institutions, Congress, with President Eisenhower's blessing, added "under God."

Taken in this historical light, the pledge is not something Michael Newdow wants to mess with; he wants to restore it. In June 1998 the 46-year-old physician filed suit against President Clinton, the U.S. Congress, and the School Board of Broward County in hopes of getting "under God" deleted from the pledge. That act of 1954, he argues, violated the First Amendment, which forbids Congress from making a law "respecting an establishment of religion." Newdow, a part-time resident of Fort Lauderdale, also argues that his five-year-old daughter, whom he's raising to be an atheist like himself, shouldn't be subjected to the pledge every morning. It will only make her feel like an "outsider," he says, and the U.S. Supreme Court has ruled that the government cannot endorse religious belief precisely because such an endorsement alienates nonbelievers.

Newdow's suit was dismissed in December. He appealed the case this past spring, and the appellate court is slated to render its decision any day now.

Newdow is no kook. In fact, he's highly educated -- with degrees from Brown University, UCLA medical school, and University of Michigan's law school -- and argues a mean game when it comes to church-state issues. "Every constitutional lawyer I talked to told me, 'There is no question it is unconstitutional, and there is no question that you will lose,'" Newdow says.

The initial dismissal of his suit, however, was based not on the merits of his legal arguments but on a technicality. U.S. District Judge Ursula Ungaro-Benages agreed with federal lawyers who argued that Newdow lacked proper standing to sue because his daughter wasn't yet in school. Newdow says his daughter now may wind up attending school in another district altogether, but he hopes that the appellate court will rule that he has standing based on his assertion that he's still a taxpayer in Broward County.

In the original case, assistant U.S. Attorney Debra Stuart also argued that, even if Newdow was qualified to file the suit, nobody was going to force his daughter to recite the pledge; she could simply sit it out. Newdow posits that, even if his daughter were to sit the pledge out, she would still be subjected to "religious dogma" in school and probably be considered an "outsider."

"At age five," he writes in his appeal, "this harm is especially acute, since she will be unable to… deal with its consequences."

Stuart also cited a 1984 U.S. Supreme Court case in which Justice William J. Brennan suggested that "under God" does not violate the First Amendment because the religious meaning has been "lost through rote repetition." Other Supreme Court justices, according to the U.S. Attorney's Office, have written that the pledge is "consistent with the principle that the government may not endorse religious belief," and that its reference to God doesn't make the pledge a "religious exercise."

Newdow counters that the Supreme Court has never directly ruled on the act of 1954, or the phrase "under God" in the pledge, a point the government concedes. All the Supreme Court citations used by the government were made as side issues in other church-state cases. In his legal briefs, Newdow cites more than 50 cases to bolster his argument, including the 1971 Lemon v. Kurtzman case, in which the court ruled that Congress is forbidden to pass laws that advance religion or have a religious effect.

"But how does he respond to the Judeo-Christian birth of this nation and to the fact that that we're a country founded on Judeo-Christian principles?" asks Gene Kapp, spokesman for the American Center For Law and Justice, which is aligned with the Christian Coalition.

Newdow addresses this issue in his court filings, noting that the founding fathers made no reference to God in the Constitution or its preamble. The First Amendment's insistence on the separation of church and state, he argues, is the most glaring proof that the founders didn't want religion commingling with government.

The Newdow case isn't the only controversy the pledge has faced of late. In Texas a school district recently banned the pledge to avoid potential lawsuits over its religious nature. The district has since lifted the ban, but the issue -- and the constitutionality of the act of 1954 -- remains unsettled, says Steve Benen, the spokesman for the Washington, D.C.-based Americans United For the Separation of Church and State (AU).

"Clearly Congress was trying to use religion as a political tool in 1954, and that raises serious church-state concerns," says Benen, whose organization boasts 60,000 members nationwide. "It's a sound argument, but Mr. Newdow likely won't prevail. The courts are just unwilling to consider the controversy, as evidenced. There may be many judges that fear political consequences. It would be outrageous to so many religious people if 'under God' was taken from the pledge."

Benen says that AU won't join the pledge fight for strictly pragmatic reasons. There are more timely and winnable battles in which to engage, he says. For instance, the AU is currently arguing a case in Florida against the use of vouchers that allow tax money to be used to send kids to Christian schools.

Newdow says his pledge fight -- unlike AU's strategic battles -- is essentially personal. The act of 1954 infringes on his own religious freedom, he claims. He's a minister of atheism, ordained by the Universal Life Church, a controversial California entity that has ordained millions of ministers of all stripes and beliefs at the mere asking. Newdow says he'll be opening his church, the First Amendment Church of True Science (FACTS), soon, likely on the Internet. Atheists, he argues, shouldn't have to pledge to a God in whom they don't believe. He compares his refusal to that expected of Christians, who would surely refuse to pledge allegiance to "one nation under Allah." Atheists, he says, are among the last groups in the U.S. that are fair game for hatred and discrimination. (At least six states still have laws barring atheists -- who make up between 4 and 13 percent of the U.S. population -- from holding public office.)

He concedes that there isn't much sympathy for atheists in mainstream America and that his cause, which has been unpublicized until now, is likely to be met with popular derision. Still Newdow says he's certain that the appellate court, on the strength of his exhaustive arguments, will have to rule with him. If it does, the case could eventually land in the Supreme Court, where the act of 1954 would get its final challenge.

If the appellate court rules against him, Newdow says he'll refile the case in another district. "I'll just have to start over," he says. "I'm not going to stop banging my head against this wall."

Contact Bob Norman at his e-mail address:

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