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« Dover Watch - Memory Loss and Kudos to Teachers The RantsHuygens to Reach Titan on Friday the 14th »

Thoughts on Newdow - Why the Little Things Matter
2005.01.09 (Sun) 13:31

A few days ago, we reported that Michael Newdow had refiled his lawsuit seeking to have the words "under God" removed from the Pledge of Allegience where Congress implanted them in 1954. We fully support that suit, and while we hope Newdow wins, we doubt that will happen. First, he is facing a well-known 0-4 handicap going before the Supreme Court. While the last suit was dismissed by an 8-0 vote, three justices, William Rehnquist, Sandra Day O'Connor and Clarence Thomas, all stated that they do not believe that the pledge in its current form violates the First Amendment, and Antonin Scalia (shockingly!) basically said the same, while recusing himself from the case at Newdow's request due to an earlier speech which left little doubt as to his position. Coming into the case as this much of an underdog leaves little chance of convincing a majority.

Of course, if Scalia recuses himself from the newly refiled suit, it leaves open the possibility of a 4-4 tie among the remaining justices, which would mean that the 9th Circuit Court of Appeals' decision would be upheld, and "under God" would be considered unconstitutional in the states encompassed by that court.

All of this doesn't mean that Newdow's case isn't a battle worth fighting. You can argue that it's too soon to fight it and that the expected loss could make it even longer before the right time does present itself. You can also argue that the likely best case scenario is a tie, and that such a situation would create confusion and state-by-state litigation which could last for years and create a political quagmire. But you shouldn't say that the issue itself is meaningless or petty. Here's why we say that.

At first glance, this issue seems like it really isn't that big of a deal. We understand — that was the initial reaction that one of our members had to it as well. Hey, we said the pledge in school every day from preschool through high school, and it was little more than a muttered chant whose words we spoke without really thinking about them or their underlying meaning. We also managed to become atheists in spite of this daily recital containing a pledge of allegiance to a nation said to be under the Christian God. What's the big deal?

However, we can't afford to say that. The people of this country already say that about far too many "small issues" just like this. We have "In God We Trust" on every piece of US currency that we carry in our wallets, and our courts display the same motto behind the judge's bench. Our Presidents — not just the current one — end their speeches with "God bless the United States of America." The bible is still used, albeit optionally, as a reinforcement for legal oaths — such as the promise to be truthful before giving legal testimony — in public courthouses, implying (often quite justifiably) that religious people cannot be trusted to tell the truth without the threat of punishment by their chosen deity. The oath of office for the highest position in our nation ends with the phrase, "So help me God." These are all small things. A lot of small things. All of these things are wrong, and all of them should be challenged and deemed unconstitutional.

Taken on their own, some of them may not mean much or have much of a detrimental impact, but together, they add up to a sturdy platform for the radical Christians to stand on when they reach for larger items on their agenda. If we take away the pile of small "givens," we take away their ability to reach beyond them. Instead, we keep them working to maintain the small items, on defense instead of offense. It's not a matter of being offended by this stuff — personally, we are hardly ever offended by anything — it's more about making sure that the so-called "little things" mandated by the government are inclusive of all of its citizens, and not just the Christian ones, whether they are in the majority or not. That's why it's important to fight the small battles as well as the large.

In addition, the pledge issue has its own unique problems. It seems that, even though it has been established that students may opt out of reciting the pledge, this behavior has drawn retribution from other students as well as from faculty and administrators. A few examples cited by the First Amendment Center include:

In March 1998, a 13-year-old Jehovah's Witness in a Seattle middle school was forced to stand outside in the rain for 15 minutes for refusing to say the pledge.

...

In April 1998, a 16-year-old student in San Diego was forced to serve detention for her failure to recite the pledge.

...

In May 2000, [high school student Michael] Holloman was castigated by teacher Fawn Allred and then paddled by a school administrator for raising his fist during the recitation of the Pledge of Allegiance. Holloman remained silent and raised his fist to express support for fellow student John Michael Hutto, who had been forced to apologize to Allred's class for refusing to recite the pledge one day earlier. Holloman said he believed the treatment of Hutto was unfair and unconstitutional.

In addition to these examples, we have read about numerous other instances where dissenting students were cajoled or manipulated into reciting the pledge by teachers or principals. It is this behavior that makes the pledge issue even more important than the other "small issues" we mention above.

As far as Newdow's other lawsuit — one seeking to prevent Bush from having a clergy member conduct a religious ceremony at the January inauguration — we can't agree with Newdow's position. Does it bother us? Yes. Not nearly as much as the fact that so much money — some of which is taxpayer money — is being spent on a big party of any kind, especially given this country's debt and other possible uses of that $50M plus bankroll; but sure, it bothers us. As atheists and rational citizens, we don't like to see our leaders engaged in public displays that showcase their irrational beliefs. Also, we just really dislike Bush, so it's hard not to hate religious indulgences that he engages in. But, assuming that the inaugural shindig is going to happen, that the pricetag is going to be outrageous, and that only a small part is going to be funded by the taxpayers, we don't really see a constitutional issue around having a religious component to the festivities. It is clearly a religion that Bush practices, and it is his choice if he wants to include a religious service in his inaugural ceremony. Other than the Oath of Office itself — which we agree should not contain any religious content — this is basically a party that is mostly privately funded which just happens to be televised. We assume that if an atheist were being inaugurated, that person would be free to opt out of the prayer session, and that a Wiccan would be able to choose a ceremony that reflected his views (of course, both of these potential presidents we posit actually live in a fictitious world where those who aren't Christians are able to attain the highest public office in the country). Over on Dispatches from the Culture Wars, Ed Brayton sums this part of the argument up nicely (though he personally doesn't see the Pledge issue as being as important as we see it):

Now, it's one thing to say that the government cannot force school children to pray, as the courts did in 1963. It's quite another to say that a President cannot choose to have a prayer spoken at his own inauguration ceremony. The government is forbidden from taking official positions on religious matters, but that doesn't mean that government officials cannot offer their opinions or participate in religious ceremonies or, for that matter, spend 12 hours a day praying if they want to. They just can't give those things the force of law, demand that the government endorse their beliefs, or force others to participate in them.

To us, this isn't one of the small issues that have to eventually be overcome, it's just Bush doing what Bush does. And just because we don't like it doesn't make it unconstitutional.

By most accounts, Newdow did a good job presenting his original case to the Supreme Court, and this time around, it doesn't appear that they will be able to sidestep a real decision. Whether it's too early, or right on time, the pledge case is an important issue to be argued. Our advice to Newdow — keep your eye on the ball, and don't dilute your message. This inauguration litigation fails on both counts.


— • —
[  Filed under: % Bush Watch  % Civil Liberties  % Government & Politics  % Greatest Hits  % Religion  ]

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