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2002-06-27

Federal Court of Appeals Declares Pledge of Allegiance Unconstitutional, Rules "One Nation Under God" Violates Separation of Church and State

Guests

Michael Newdow, plaintiff and attorney in the lawsuit charging the Pledge of Allegiance is unconstitutional. He filed the lawsuit in federal district court in Sacramento.

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A three-member panel of the U.S. Court of Appeals for the Ninth Circuit on Wednesday declared the Pledge of Allegiance is unconstitutional because the phrase "one nation under God" violates the separation of church and state. Judge Alfred Goodwin wrote in the 2-to-1 decision that the words "one nation under God" are just as objectionable as a statement that "we are a nation 'under Jesus,' a nation 'under Vishnu,' a nation 'under Zeus,' or a nation 'under no god,'" because none of the statements are neutral with respect to religion. The ruling set off a firestorm on Capitol Hill, where senators broke from their discussion on how much to spend on the military to pass a unanimous resolution condemning the ruling. The ruling came in a lawsuit filed in Federal District Court in Sacramento by an atheist, Michael Newdow, our guest, whose daughter attended elementary school in the Elk Grove Unified School District near the state capital. [includes rush transcript]

Transcript

This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: We move now into the top story in the United States. A three-member panel of the U.S. Court of Appeals for the Ninth Circuit on Wednesday declared the Pledge of Allegiance unconstitutional, saying the phrase "under God" violates the separation of church and state. Judge Alfred Goodwin wrote in the two-to-one decision that the words "one nation under God" are just as objectionable as a statement that "we are a nation 'under Jesus,'" or "under Vishnu" or "under Zeus" or "under no god," because none of the statements are neutral with respect to religion.

The ruling set off a firestorm on Capitol Hill, where senators broke from their discussion on how much to spend on the military to pass a unanimous resolution condemning the ruling. Dozens of House members gathered on the Capitol steps to recite the pledge and sing "God Bless America." Democratic Senator Robert Byrd said, "I hope the Senate will waste no time in throwing this decision back in the face of these stupid judges. That’s what they are, stupid." Democratic Senator Tom Daschle called the decision "just nuts" and asked all senators to be present this morning to recite the pledge, as we are broadcasting right now, 9:30 Eastern Standard Time. Republican Senate Minority Leader Trent Lott said, "This highlights what the fight over federal judges is all about. We do need to put judges on there that wouldn’t render this kind of decision." Democrats pointed out that Judge Goodwin was appointed by Richard Nixon. And White House spokesperson Ari Fleischer said President Bush called the decision "ridiculous."

JUAN GONZÁLEZ: The ruling does not declare the entire pledge unconstitutional, only the phrase "under God." Congress added those words in 1954 during the height of the McCarthy era. The ruling came in a lawsuit filed in federal district court in Sacramento by an atheist, Michael Newdow, whose daughter attended elementary school in the Elk Grove Unified School District near the state capital.

The ruling will almost certainly be appealed. But if it stands, the decision by the nation’s most liberal appellate court would ban the pledge from being recited in public schools in the nine Western states under the court’s jurisdiction. That includes Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington.

AMY GOODMAN: We’re joined on the phone now by Dr. Michael Newdow. He is the plaintiff and attorney in the lawsuit charging the Pledge of Allegiance is unconstitutional. He filed the lawsuit in federal district court in Sacramento.

How do you feel right now?

MICHAEL NEWDOW: Oh, I was expecting this, so I’m not totally surprised. And I guess I’m not surprised by the furor that it’s raised, although I didn’t think it would come quite to this level.

AMY GOODMAN: Why don’t you talk about why you took this case to court?

MICHAEL NEWDOW: Because it’s clear that these things that the government does, for instance, having our motto as "In God we trust" and placing "under God" in the middle of the pledge are violations of the Establishment Clause. I’m an atheist, and I, like any other American citizen, shouldn’t have government thrusting religious dogma that I disagree with down my throat.

JUAN GONZÁLEZ: Now, this has been—these words have been in the pledge now since 1954. The courts had never before had a challenge to the pledge?

MICHAEL NEWDOW: They’ve had challenges. I did it somewhat differently. The past challenges have always been just against the school boards. The school boards’ argument is always, "Hey, we’re just, you know, reciting the pledge. That’s patriotism. We haven’t done anything wrong." And the courts have gone with that. I sued also Congress, because Congress was the one that actually did the bad thing. They’re the ones who took these two religious words and stuck them in the middle of the pledge. So I think that made some difference. And the other difference is the legal climate has changed. There have been decisions—the high school graduation and the high school football game decisions, particularly—which have changed the law, so—or at least fortified the law.

AMY GOODMAN: Now, your daughter did not have to recite the Pledge of Allegiance, right? It is optional.

MICHAEL NEWDOW: Yeah, people—right, people focus on that, and it’s, I think, a mistaken focus. There’s an issue of coercion, and it’s one of the tests the Supreme Court has discussed. You don’t need coercion to have an Establishment Clause violation. If you have coercion, that alone will be an Establishment Clause violation, but you don’t need that. She is not coerced inasmuch as she has to say it. But the Supreme Court has also said that when you take kids, and you stick them in a setting that the government mandates them to be in, i.e. school, and then you start inculcating religious belief, that is coercion by definition. And so, under the Supreme Court’s definition, she has been coerced just by the fact that she has to sit there while her teacher leads her and her students in this religious ritual.

JUAN GONZÁLEZ: What’s been the reaction directly to you since the decision? Have you gotten much?

MICHAEL NEWDOW: Just a ton—not much sleep and a ton of news people. And I have a tape machine that’s gone pretty much nonstop with a lot of threats and things like that.

AMY GOODMAN: Looking at the New York Times today, it says, "The tumult over the pledge, which is recited daily with an opening prayer when the House and Senate meet, came as Congress was trying to resolve several significant issues in a race to complete work before" July Fourth. You say that you sued Congress, as well.

MICHAEL NEWDOW: Right.

AMY GOODMAN: Because it ultimately put those two words in, "under God"?

MICHAEL NEWDOW: Correct.

AMY GOODMAN: So what does this mean that you sued them? What now do they have to do?

MICHAEL NEWDOW: Well, this is an issue that the courts get into frequently. There’s a separation of powers doctrine, in addition to the First Amendment. And so, the courts say, "We can’t tell Congress what to do. We can just say what they did was wrong." And so, essentially, that’s what they’ve done here. You can’t really sue Congress, or at least no one has to date. The problem is the Establishment Clause is very different from every other clause in the Bill of Rights. The Bill of Rights generally says these are things that government can’t do against individuals. Individuals can’t have their free speech abridged. Individuals can’t have their right to worship abridged. Individuals can’t—you know, the press can’t be infringed upon. And so, there’s always an intermediary involved. You know, the policeman comes and says, "Get off this lawn, and don’t protest." The policeman comes along and, you know, overthrows the presses. The Establishment Clause is totally different. It says Congress may not do this, period. We don’t care what it does to people; Congress can’t do this. And so, I have maintained that someone has to be able to sue Congress when they violate the Establishment Clause; otherwise, Congress could get up tomorrow and say, "We hereby establish" — and fill in your religion — "as the national religion." And clearly, that’s in violation of the First Amendment. And yet, according to the way the courts handle this, there would be nothing anyone could do if they did that. So I contend that you have to be able to sue Congress when there’s an Establishment Clause violation. I haven’t won on that theory yet.

JUAN GONZÁLEZ: Now, you are—you have a law degree, but your main job is as an emergency room physician?

MICHAEL NEWDOW: That was my main job. My main job now is fighting the government.

JUAN GONZÁLEZ: I see. Well, are you preparing then to argue before the Supreme Court now, as I’m sure this will be appealed and—

MICHAEL NEWDOW: I don’t know—I don’t know what their rules are, first of all. I don’t know if pro ses have ever argued before them. I’m not admitted to any bar. I got my degree 14 years ago, and I think it has [inaudible]—

AMY GOODMAN: I believe they—oh, pro ses, because I know Jennifer Harbury, although she is a lawyer, argued her case before the Supreme Court.

MICHAEL NEWDOW: I don’t know that case, but—I don’t know what the rules are. It’s not before the Supreme Court yet, and I’m not sure if it will get there. But—

AMY GOODMAN: So you’re an emergency room physician, and you also like to be called "Reverend Doctor." Where does the "Reverend" come in?

MICHAEL NEWDOW: Ah, Universal Life Church. You send away to them; they send you a card, say you’re a reverend.

AMY GOODMAN: And where does that fit into you wanting to take religion out of—

MICHAEL NEWDOW: I thought it was a catchy title. So...

AMY GOODMAN: Now, this is not the first lawsuit you filed. You had a lawsuit against Bush, that was thrown out, around a prayer delivered at the 2000 inauguration by the Reverend Franklin Graham, son of evangelist Billy Graham. Can you talk about that? What did he say?

MICHAEL NEWDOW: Yeah, actually, this is the first. The one against Bush was the second, and that one is at the stage now where this one was a year ago. I lost in district court, which you always lose in district court, so... It’s actually an advantage to lose in district court. It gives you an extra brief when you go to the court of appeals, and it’s going to go there anyhow. So that’s no problem. Bush had—I don’t know if—how many people saw the inauguration, and I didn’t watch it for any particular reason; I just happened to be home and was watching. And Franklin Graham comes in, and he gives this, "O Lord, You are the power and the glory and the goodness and the grace" and all this other nonsense and—sorry, all this other stuff—and ended up, "in the name of the Lord Jesus Christ, our holy savior," or something to that effect. This was totally egregious, I mean, clearly in violation of the Constitution. And so I sued. They also had another reverend doing the same thing, Kirbyjon Caldwell. And it’s been—it went—I lost in the—again, on the separation of powers issue, the court—they first came out and said it’s OK, and then I showed them, I think, that it isn’t OK. And then they said, "Well, even if it isn’t OK, because of separation of powers, we can’t tell the president what to do." And I said, "Excuse me, but that’s your job to tell the president what to do." And they said, "No." And so now it has to go to the court of appeals.

JUAN GONZÁLEZ: Well, it’s a good thing that the two justices who ruled in your favor on this are in their seventies, because I think the Senate has pretty much made it clear that they have no future in terms of promotions within the federal judiciary. And so, they don’t have that much longer to go on the bench, I suspect.

MICHAEL NEWDOW: Those two judges should be commended. They upheld the Constitution, recognizing the political unpopularity of their decision. That’s what we—that’s why we have a Bill of Rights. They were protecting it.

AMY GOODMAN: Well, Reverend Dr. Michael Newdow, I want to thank you for being with us. What did your daughter say to you when she heard about this decision yesterday?

MICHAEL NEWDOW: I’m keeping her out of it as much as I can. It’s not her issue; it’s mine.

AMY GOODMAN: Well, thank you for being with us.

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