One Nation, Under... Who?

by HOWARD FINEMAN

Newsweek, July 8, 2002, page 20

Telecoms are dying, consumers are wary and no one buys the corporate books. The deficit is exploding, the Middle East is a shambles and Al Qaeda still lives. But the U.S. Senate had more urgent business last Thursday: to stand up for God against the combined evil of two federal judges and an atheist dad in California. The chamber usually is empty for its sleepy opening ritual: a prayer by the chaplain, then the Pledge of Allegiance. On this occasion the place was teeming. The evening before, Democratic leader Tom Daschle had suggested that senators recite the pledge. The reason: to jointly condemn a panel of the U.S. Court of Appeals in San Francisco, which had just ruled that the words "under God" were unconstitutional when uttered by teachers leading school-kids in their morning ceremony.

So now, senators hovered at their desks. TV news channels were taking C-Span's "feed" live. Galleries were jammed. As the "long bell" rang in the hallways to signal the start of the day, phones were ringing in the cloakrooms. Hustling through Capitol corridors or parking their cars, straggler senators were calling in. Their plea: wait for me! The chaplain, Dr. Lloyd John Ogilvie, a distinguished Presbyterian who spent 20 years tending a flock in Hollywood, knew to speak slowly. Yet even his soothing, golden tones couldn't fill enough time to save everyone. John Kerry was stuck in downtown traffic after attending what an aide later called an "economic-policy meeting" with "private sector" friends. "He wanted to be there, of course," said a chagrined staffer. But Kerry, who's running for president, could only stew while his rivals put their hands on their pious hearts--on television.

On the Left Coast, meanwhile, the fellow who had caused the ruckus--a 49-year-old lawyer and emergency-room doctor named Michael A. Newdow--cheerfully resumed the live chat he'd started with America when he filed suit. In an interview with NEWSWEEK at his comfortable home in Sacramento, he explained that more was at stake than protecting his 8-year-old daughter from the emotional "injury" she risked as an atheist outcast in a roomful of God-fearing kids. Newdow's aim was to surgically separate faith from any action of government. "I'm as patriotic as you can get," he said. "I'll keep going right now--I'm ahead."

A rigorous rationalist, Newdow seemed pleased he'd touched such a live wire, but a bit startled by the voltage. From an upstairs bedroom, he fetched answering-machine tapes full of praise, damnation and physical threats. One caller labeled him a "freakin' commie bastard," while another said he'd soon drop by to "beat your a--." (He was offered police protection, but declined.) A woman from San Diego called to commiserate about the predations of believers there. A caller calmly advised him to "consider what the majority wants," while another pointed out that he was lucky: "Hey, you didn't leave the country--yet," the voice said.

Thank God.

As we approach the first Fourth of July since 9-11, this is how Americans are celebrating: by shooting off fireworks and shooting off their mouths. At a time of renewed appreciation for the role of faith in private life, we are honoring the Declaration of Independence--and the ideals that compel us to wage war on terror--with a festival of free speechifying over the role of God in public affairs. The founding document we venerate this week declares that our rights--to life, liberty and the pursuit of happiness--were given to us by our "Creator."

But that document, and the Constitution that followed it, also gives Newdow the freedom to try to banish any trace of the "Creator" from official discourse. It's a concept that makes no sense to bin Laden, Saddam or, indeed, to any theocrat or despot. Which was the point back in 1776--and, more profoundly than ever, in 2002. The furor over the pledge gave the country a crash civics lesson in the balance between church and state and a moment to grapple anew over what beliefs it takes to be an American. Indeed, most Americans disagree with Newdow, and very much want to keep the words "under God" in the pledge. But, however reluctantly, most would also agree that he has every right to complain, and to try to convince the Supreme Court he's right.

Especially since last September, we seem to welcome talk of God by public leaders. President George W. Bush's willingness to express his faith (kneeling in private with the president of Macedonia, talking in the open with Arizona firefighters) is popular. Still, the Constitution is our civic deity and its priesthood--the courts--last week issued two wildly divergent rulings concerning the issue of church and state.

A panel of the Ninth Circuit, the most liberal appellate jurisdiction, held that the First Amendment's "Establishment Clause" invalidates Congress's 1954 decision to insert "under God" into the pledge. Newdow's daughter was not required to utter a word of it. But its recitation by a publicly paid instructor in a publicly financed classroom was a coercive endorsement of faith in God, the court held, and therefore impermissible under a line of cases dating to 1971. Among them: rulings that ban prayer at school graduations, and even student-led invocations at public-high-school football games.

A day later the U.S. Supreme Court, in a 5-4 decision, went dramatically in the opposite direction. In an opinion by Chief Justice William Rehnquist, the high court held that Cleveland could offer public-school kids a $2,500-a-year stipend to attend the private school of their choice--though, as a practical matter, the only alternative in Cleveland was the city's Roman Catholic parochial system. The voucher program, Rehnquist wrote, was "neutral in all respects toward religion." Writing for the minority, Justice Stephen Breyer derided the chief's view. The reality, he said, was that tax money will underwrite "a core function of the church: the teaching of religious truths to young children."

The two court rulings had little immediate impact. School is out in most of the Ninth Circuit's Western domain, and the 2-1 decision by a three-judge panel will be reviewed by a larger group of judges there or, if necessary, by the Supreme Court. Reversal is considered likely, especially given the voucher decision's tolerant stance toward religion. As for vouchers, most states and suburban districts are leery if not hostile, and the Bush administration is treading cautiously. The president couldn't sell vouchers as governor of Texas, never used the V word in the 2000 campaign and ditched the idea last year so that he could pass the education bill he wanted: one with tough "accountability" standards for public schools. Before the Cleveland decision, Bush had asked Congress for $4 billion in tax credits over five years for "school choice" programs. Officials told NEWSWEEK that, the court's decision notwithstanding, they won't ask for more.

Of course, once the courts have spoken, the politicians translate. The politics of the pledge are clear: embrace God, fast. In the NEWSWEEK Poll, there was overwhelming (87-9 percent) support for including "under God" in the pledge. By a 54-36 percent margin, those polled said there was no reason for government to "avoid promoting religion." By a 60-37 percent margin, they said it was "good for the country" for leaders to publicly express their faith in God. Only 29 percent said they viewed the United States as "a Christian nation"; 16 percent see it as a "Biblical nation, defined by the Judeo-Christian tradition"; 45 percent see it as a "secular nation." Still, 84 percent think references to God are acceptable in schools, government buildings and other public settings--if no "specific religion" is mentioned.

Sharing a folk memory of past cultural blunders, Democrats were eager not to repeat the legendary mistake of Michael Dukakis, the hapless Massachusetts governor and 1988 presidential nominee who vetoed a state bill mandating recitation of the pledge. Even the ACLU was all but mute, tersely calling the Ninth Circuit panel "correct" while insisting the organization had had nothing to do with instigating the suit. (The judge who wrote the opinion took the unusual step of ordering a stay of the decision pending appeal, even though one was already in effect.)

Some Democrats went to comical lengths to proclaim their godliness. Sen. John Edwards, another presidential wanna-be, hastily issued a press release claiming that he "recites the pledge each morning after the Senate convenes and is led in prayer by the Senate chaplain." It's true that, as a junior member, Edwards often presides at the start of a session. At those times, he does pledge and pray. But it doesn't happen "each morning," or most mornings. "I wrote that part too fast," his press aide, Mike Briggs, said sheepishly.

Despite the Democrats' self-protective measures, Republicans were looking for a line of attack in the godly talk. Vouchers were too risky politically to champion flat out. Some inner-city blacks and Hispanics favor them, as do some libertarian and Bible-belt conservatives. But most suburban Republicans, proud and protective of their public schools, do not. They also worry about voucher-wielding kids showing up at their doorsteps. "This is a wedge issue aimed straight at our coalition," said Rep. Tom Davis, who heads the GOP's House campaign committee. "We have to be careful."

That leaves an old favorite: castigating an "activist judiciary." It's a theme White House political strategist Karl Rove had long since decided to pursue with the party's base, focusing on the president's many pending conservative nominations to the federal bench.

Now the crusade will have some specific enemies. One conservative group, Citizens United (the folks who produced the Paula Jones suit), vowed to lead a petition drive. It would call for the immediate retirement of Alfred T. Goodwin, the senior judge who wrote the pledge opinion, and the impeachment of the judge who joined him, longtime liberal lion Stephen Reinhardt. Agitators should have little trouble finding a sponsor on the wilder reaches of the GOP back bench. Anti-judicial rhetoric could help GOP candidates in some races, claimed Ralph Reed, a Republican strategist and Georgia state party chairman. "This is what motivates our base," he said. "In low-turnout midterm elections, this will help."

The GOP may need help more urgently than they admit. Consumer confidence is falling and, in the NEWSWEEK Poll, President Bush's approval rating has slipped to 70 percent--still healthy, but the lowest since 9-11. Americans remain concerned about terrorist attacks, even as the Congress itself orders 25,000 new gas masks to protect against one. And Democrats are planning a wholesale attempt to link ethics lapses on Wall Street and the president's economic stewardship to rising deficits and fiscal pressures on Social Security and Medicare. "If they think this pledge thing is a silver bullet, they're in worse shape than they know," said Democratic guru James Carville.

In the political din, it was left to conservatives to point out that the Wild Westerners were following the precedents of the Supreme Court. It's true that the Constitution makes no mention of "the separation of church and state." It's also true that the First Amendment, strictly read in the context of its times, merely prohibits support for an official church, like the "established" Anglican one in England. But, starting with a decision in 1971, the Supreme Court has been expanding the reach of the Establishment Clause, invalidating any action by government that "advances," "coerces" or "endorses" religious faith. "The court is about to reap what it sowed," said Chris Landau, a Washington lawyer who clerked for Justice Antonin Scalia. "They were warned this would happen."

But it took a match to light this fire and Newdow, it seems, is a born incendiary. In an interview with NEWSWEEK, his parents recalled a child obsessed with precision in word and action. As a toddler, he insisted on putting his stroller away in a precise spot in the basement of their Bronx apartment. At dinner, he would inquire about the meaning of a word, and ask that his parents stop the meal to check the dictionary. He skipped the second grade, but refused to take one of the first tests administered in his new class. He said the instructions couldn't be followed precisely. His parents were nonpracticing Jews. "We never disparaged God," said Rosalyn Newdow. "We just never talked about it." He recalled only one discussion about religion: in which his son asked him to explain the difference between atheism and agnosticism.

American history often is made by eccentrics and the single-minded, and Newdow certainly seems to qualify. With a bent for science (and music and theater), he majored in biology at Brown and earned a medical degree from UCLA. But he was drawn to the law by the shortcomings he saw in the health-care system. At the University of Michigan, he was "the most memorably contentious student I've ever had," one prof said appreciatively. He had barely landed in law school when he filed--and won--his first lawsuit. Why should he pay out-of-state tuition at the U of M, he want-ed to know, when he was paying in-state state sales tax at the grocery store? The authorities settled.

He found his crusade, he told NEWSWEEK, in a checkout line in Chicago in 1996. He had bought some soap, and glanced at the words in god we trust on the coins he received in change. He says he thought: "This is offensive. I don't trust in God." Long nights at the computer followed. "It's fun to use your head and think of responses to arguments," he says. Newdow challenged the pledge in Florida in 1998, but was rebuffed because his daughter was not yet school age. When he moved to Sacramento, he enrolled her in the Elk Grove schools, and another lawsuit followed.

Now the man who once played the lead in an amateur production of "The Music Man" is leading his own parade. To make money, he practices medicine as an itinerant emergency-room physician. His passion is his legal work. He signs legal pleadings "The Rev. Doctor Michael A. Newdow." In 1977 he was ordained minister in the Universal Life Church. Its adherents believe that rational thought, not God, is the guiding light of life on earth. Most Americans wouldn't consider that church a church, or Newdow a reverend. But hey, it's a free country.