God on Docket — Yet Again — in Coast Court
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SAN FRANCISCO — A federal appeals court is wrestling with an atheist’s double-barreled legal assault on the mention of God in the Pledge of Allegiance recited at public schools and in the “In God We Trust” motto on American currency.
The 9th Circuit heard nearly two hours of oral arguments yesterday on the pair of church-and-state cases, both brought by a Sacramento physician and lawyer, Michael Newdow. In a separate case in 2002, he won a ruling from another 9th Circuit panel that it was unconstitutional to lead schoolchildren in the pledge. That decision prompted public outrage and was later overturned by the Supreme Court on technical grounds.
“This is not a case of people who believe in God versus people who do not believe in God,” Dr. Newdow said as he pressed his new case over the pledge. “It’s a case of people who believe in treating people equally and people who believe in not treating people equally.”
A top Justice Department attorney, Gregory Katsas, told the judges that the Pledge of Allegiance is “not akin to” prayer at a public school graduation, a practice that the Supreme Court declared unconstitutional in 1992. He said the pledge is more like reading from the Declaration of Independence or singing the national anthem.
“The issue before you is the line between prayer and patriotic exercises,” Mr. Katsas said.
One of the three jurists who heard the God-related cases yesterday, Judge Stephen Reinhardt, is an appointee of President Carter and served on the panel which upheld Dr. Newdow’s earlier challenge to the pledge. Judge Reinhardt’s questions suggested that he will vote again to strike the “under God” language. On the other hand, Judge Carlos Bea, who was appointed by President Bush, seemed skeptical of Dr. Newdow’s arguments.
The swing vote may rest with Judge Dorothy Nelson, another appointee of President Carter. She spoke less than the other two judges and did not betray a clear view on the case.
At times, the courtroom could have been mistaken for a college class on religion or philosophy as judges and lawyers argued about the beliefs of the founding fathers and about the meaning of the word, “God,” in the pledge and on currency. At one point, Dr. Newdow, of all people, quoted scripture in an effort to demonstrate how the Hebrew Bible promotes hostility to atheists.
A lawyer for a group supporting the rights of religious adherents, Kevin Hasson of the Becket Fund, said the God in the pledge is the same God referred to in the Declaration of Independence, but is not the deity in the Bible. “It wasn’t the Christian God. It wasn’t the Jewish God. It was the philosopher’s God,” Mr. Hasson said. He said the “under God” reference refers to a creator early philosophers and scientists like Aristotle concluded “could be known by reason alone.”
Dr. Newdow said the anger shown in response to the 9th Circuit’s earlier ruling demonstrated that most Americans view the reference as religious and not a vague invocation of a prime mover. “It has tons of religious significance,” he said. “That’s why people get so mad when we discuss treating people fairly and taking it out.”
In the case over the motto on money, the arguments followed similar lines. Dr. Newdow said he tries to avoid using coins and bills because the “In God We Trust” message offends his atheistic beliefs as well as those of the religion he founded, “the First Amendmist Church of True Science.”
“In God We Trust” was placed on American currency in the 1800s, but Congress did not formally adopt it as the national motto until 1956. “It was very clearly meant to be religious,” Dr. Newdow said, pointing to legislators’ comments that the message would distinguish America from nonbelievers in the Communist Soviet Union. “It was clearly meant to send a message that atheists aren’t as good as people who believe in God.”
Another Justice Department lawyer, Lowell Sturgill, said lawmakers were simply seeking an “inspirational” phrase that “reflected the unique history of our nation.”
That prompted Judge Reinhardt to ask if Congress should have said, “In God We Trusted.” Judge Bea replied that he could divine no distinction between referring to God in the past or present tense. “Unless he were dead, he’d still be around,” the judge said.
In another good-natured but pointed exchange, Judge Reinhardt suggested Judge Bea was ignoring “clearly established” precedents holding that schools can be responsible for the ostracism children face after opting out of a ritual like the pledge. Judge Bea replied that Judge Reinhardt seemed to be arguing a point that stumped Dr. Newdow. “That’s what’s called a lifeline,” Judge Bea said with a smirk.
In 1970, the 9th Circuit rejected a challenge to the motto on currency, but Dr. Newdow’s case might have new traction because of a law Congress passed in 1993, the Religious Freedom Restoration Act. If Dr. Newdow can show the motto hampers his religious practices, the government will have to show a “compelling” interest in keeping the phrase.
After the Supreme Court rejected Dr. Newdow’s previous pledge case on standing grounds relating to custody of his daughter, he quickly signed up other children and parents who object to the pledge and refiled the challenge on their behalf.