WASHINGTON (BP)–At least some lawyers who support the reference to God in the Pledge of Allegiance left the March 24 oral arguments at the Supreme Court confident the justices will deliver an easy win for their side.
Jan LaRue, chief counsel of Concerned Women for America, told Baptist Press she believes it will be “seven-one, maybe eight-zero to uphold the pledge.”
The ruling in support of the pledge “could even be unanimous,” Jordan Lorence of the Alliance Defense Fund told Focus on the Family’s CitizenLink.
If they are wrong, Southern Baptist church-state specialist Richard Land has a prediction for what would happen next.
“I expect the court to uphold the pledge as constitutional. If it strikes down the pledge, we will witness the fastest ratification of an amendment to the Constitution in American history,” said Land, president of the Ethics & Religious Liberty Commission. “Such an amendment, which would guarantee Americans’ right to use the phrase ‘under God’ in our national pledge and ‘In God We Trust’ as our national motto, would surf the crest of a wave of overwhelming public outrage to rapid ratification.”
The justices heard arguments about whether the words “under God,” which about 90 percent of Americans believe should remain in the pledge, constitute an unconstitutional establishment of religion when recited by elementary students in a California school district.
Michael Newdow, an atheist who sued the Elk Grove (Calif.) Unified School District and argued in his own behalf, urged the justices to uphold the opinion of the U.S. Ninth Circuit Court of Appeals that inclusion of “under God” violates the First Amendment’s ban on government establishment of religion. Congress added the phrase to the pledge in 1954. Meanwhile, U.S. Solicitor General Theodore Olson and a lawyer for the school district argued for the high court to reverse the appeals court. Fourteen Supreme Court justices have indicated the “pledge is not a religious exercise” but a “ceremonial reference,” Olson told the court.
Newdow’s case did not find a receptive audience during his 30 minutes to argue, LaRue and Lorence said.
“It was more than obvious that Newdow’s arguments were not persuading the court,” she said.
Different justices reminded Newdow of other government acknowledgments of religion, LaRue said, such as the motto “In God We Trust” on coins and the opening of each session of the Supreme Court, in which the marshal says, “God save the United States and this honorable court!” They also reminded Newdow his daughter, who is in the fourth grade in an Elk Grove school, is not required to recite the pledge.
“What’s the beef?” LaRue said the justices seemed to be saying. “That’s light years from government establishing or endorsing or coercing religious expression.”
Lorence, senior vice president at ADF, told CitizenLink, “I don’t know how ‘pretty’ the decision will be. They may say, ‘This is ceremonial deism, so it doesn’t mean a whole lot, so it’s okay.’ What’s important is that no one on the court seemed to be supportive of Michael Newdow and his position. That was clear, and the consensus of all the observers there.”
One of the opponents of retaining the reference to God in the pledge told reporters outside the court he was still hopeful.
Barry Lynn, executive director of Americans United for Separation of Church and State, said he has “come to know, as many of you have, that oral arguments are not the sole basis for making decisions.”
“And I think that when people look at this issue, including all the briefs, one more time, it will be clear that this is an affirmation of religion. You know, if the words ‘under God’ do not have religious significance, then I literally don’t know what words do.”
The ERLC’s Land, who was out of the country when the arguments were held, said, “To argue that the phrase ‘under God’ in a voluntary pledge of allegiance in the public schools is a de facto establishment of religion or in any way, shape or form violates the establishment clause is dangerous nonsense that would require the expunging of all mention of God from all public places, including public officials saying ‘God bless America.’”
In addition to determining whether a school district can require teachers to lead “willing students” to recite the pledge with “under God” in it, the court also will weigh whether Newdow even has legal standing to bring a court challenge.
After a three-judge panel of the Ninth Circuit panel ruled for Newdow in 2002, it was revealed his daughter did not oppose the pledge. Sandra Banning, the girl’s mother who was never married to Newdow, said her daughter enjoyed reciting the pledge. Banning, who has custody of the girl, also said her daughter and she are members of Calvary Chapel of Laguna Creek, an evangelical church in Elk Grove.
The Ninth Circuit, however, ruled Newdow maintained standing in the case as a parent.
The justices questioned both sides about the issue of standing, and some observers thought the court’s judgment on it was hard to gauge.
Jay Sekulow, chief counsel of the American Center for Law and Justice, told reporters outside the court it “seems like that’s too close to call. I wouldn’t give a prediction on that one at this point.”
CWA’s LaRue said the court “might very well dismiss [Newdow’s] case on the ground of standing,” but she sensed the justices want to dispose of it on the merits of the case.
Both parents of the 9-year-old girl at the center of the controversy spoke to reporters after the arguments.
Sandra Banning explained why their daughter was not at the court.
“If her father were arguing regarding any other case but her custody case … it would have been fine,” she said regarding the question of Newdow’s standing to bring suit. “However … they were discussing her, and as the family court determined, it’s not appropriate for a child to be involved in the discussion of their custody.”
Banning filed a brief in support of the pledge, which Kenneth Starr, former Whitewater special prosecutor and onetime solicitor general, wrote in her behalf.
“As a mother, as a Christian and an American, as I said, I’m hoping this court will resolve this issue today and that this will be the last time that as a nation that we will have to come to the Supreme Court in order to determine whether our pledge is unconstitutional,” Banning told reporters. “I hope and pray that they will support our history, the traditions of our nation and the values that we hold dear.”
Banning said she has never objected “to our little girl reciting the Pledge of Allegiance.”
“And as I’ve said many times before, the first day of third grade she volunteered … to lead her class in reciting the pledge.”
Lawyers on both sides seemed to agree that Newdow, a physician who has a law degree, did an excellent job in his arguments.
Newdow, who described his daughter as “a great kid,” said he didn’t think the justices “gave me a hard time. I thought they were asking reasonable questions. I think it will be eight-nothing,” apparently in his favor. He participated in 11 moot courts in preparation for the oral arguments, Newdow told reporters.
On the issue of whether he has legal standing, he said, “I think there’s no question I have standing on this trial. As a parent, she stays in my house 10 days a month.”
With reporters, he reiterated his contention that the establishment clause does not permit “under God” in the pledge.
“It says that [government is] not to be in the religious business, and I think it’s hard to argue that the two words ‘under God’ are not religious,” Newdow said. “This isn’t atheism versus theism. This isn’t God against no God. This is a government getting involved in religion and government staying out of religion.”
Banning told reporters she thought the father of her daughter “did very well.”
“He’s very well-spoken. You could tell that he had his thoughts together,” she said. “He showed as much passion today in the Supreme Court as he does in the family law court.”
The reason there will be only eight votes in the opinion is because Associate Justice Antonin Scalia recused himself without explanation. Scalia, considered the court’s most conservative member, had criticized the Ninth Circuit’s opinion, however, before it arrived at the Supreme Court.
Scalia’s absence makes it possible the court could deadlock 4-4, which would result in the survival of the opinion in the Ninth Circuit. The ruling would then remain in force in the states of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington.
CWA’s LaRue believes that is unlikely. “I never bought into the speculation that without Scalia the vote might end up 4-4,” she said.
A decision in the case, Elk Grove Unified School District v. Newdow, is expected before the court adjourns in late June or early July.
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