Excerpts from yesterday's Supreme Court oral argument in Elk Grove Unified School Dist. v. Newdow as transcribed by Alderson Reporting Co.
TERENCE CASSIDY, attorney for Elk Grove Unified School District: The daily recitation of the Pledge of Allegiance to the flag by millions of school children across our country does not violate the establishment clause (of the Constitution). Petitioners submit that the decision of the 9th Circuit Court of Appeals was incorrect for two reasons. First, respondent (Michael Newdow) lacks standing to assert the claims in this case, and second, the school district policy of willing students reciting the pledge with the words, "one nation under God," is a patriotic exercise that is part of an unbroken history of official government acknowledgment of the role of religion in American life.
JUSTICE DAVID SOUTER: As I understand it, and you correct me if I'm wrong, as I understand it, he's saying, Look, simply as the father of this child, I have an interest which is in fact being infringed here. Even though under state law the mother of the child has the right to cast the final decision on matters of morals, education, religion, I nonetheless have an interest as a father, and that interest is in seeing that my child is not subjected to what I believe is an unconstitutional religious interest or religious influence. What is your answer to his claim that that is enough to give him personal standing?
CASSIDY: I have to answer that question, Justice Souter, based upon how the school district perceives respondent's rights, and in this case, the school district must look to only a single decision-maker. It's the only way a school district can function. It's the same way this Court should approach, we would suggest, the standing issue."
SOUTER: Well, the mother isn't a decision-maker for the school district, neither is the father a decision-maker. If there's going to be a decision-maker, it's ultimately going to be a judicial decision-maker on the constitutional question. He is simply saying, I have a right to raise that question by virtue of my interest as a father, even though at the present time under state law I cannot control her presence or absence at the school.
CASSIDY: We would submit, Justice Souter, that the question is truly what is in the best interest of the child. That's ultimately the determination made when we look to parents' rights in custody disputes under state law.
JUSTICE JOHN PAUL STEVENS: Is it the government's position that the words, under God, have the same meaning today as when they were first inserted in the pledge?
SOLICITOR GENERAL THEODORE OLSON, Bush administration lawyer: Yes and no, and I would like to answer, explain if I may ... It's an important question because the reference to under God in the pledge, as numerous decisions of this Court have indicated in dicta, ... is an acknowledgment of the religious basis of the framers of the Constitution, who believed not only that the right to revolt, but that the right to vest power in the people to create a government ... came as a result of religious principles. In that sense, the Pledge of Allegiance ... has that same significance to this country as it did in 1954 when it was amended.
But as this Court has also said, and that's the other part of my answer to your question, this Court has also said the ceremonial rendition of the Pledge of Allegiance in context repeatedly over the years has caused, would cause a reasonable observer familiar as this Court's First Amendment establishment-clause jurisdiction points out would cause a reasonable observer to understand that that ... this is not a religious invocation. It is not like a prayer, it is not a supplication, it's not an invocation ... .
The Pledge of Allegiance is not what this Court has said the establishment clause protects against, that is to say, state-sponsored prayers, religious rituals or ceremonies, or the imposition or the requirement of teaching or not teaching a religious doctrine.
The establishment clause does not prohibit civic and ceremonial acknowledgments of the indisputable historical fact of the religious heritage that caused the framers of our Constitution and the signers of the Declaration of Independence to say that they had the right to revolt and start a new country, because although the king was infallible, they believe that God gave them the right to declare their independence when the king has not been living up to the unalienable principles given to them by God.
MICHAEL NEWDOW: Every school morning in the Elk Grove Unified School District's public schools, government agents, teachers, funded with tax dollars, have their students stand up, including my daughter, face the flag of the United States of America, place their hands over their hearts, and affirm that ours is a nation under some particular religious entity, the appreciation of which is not accepted by numerous people, such as myself. We cannot in good conscience accept the idea that there exists a deity.
I am an atheist. I don't believe in God. And every school morning my child is asked to stand up, face that flag, put her hand over her heart, and say that her father is wrong.
JUSTICE ANTHONY M. KENNEDY: It seems to me this case has to be about your rights, and you began this argument by talking about your daughter and you're talking about her now. I think she has, at least we'll say, I have serious concerns about her standing, and so it seems to me that her position is irrelevant.
NEWDOW: And I agree with that, your honor. I am saying I as her father have a right to know that when she goes into the public schools she's not going to be told every morning to be asked to stand up, put her hand over her heart, and say your father is wrong, which is what she's told every morning. That is an actual, concrete, discrete, particularized, individualized harm to me, which gives me standing.
CHIEF JUSTICE WILLIAM H. REHNQUIST: Why isn't General Olson's categorization of the remainder as descriptive, one nation under God, with liberty and justice for all? You can disagree it's under God, you can disagree that it's has a liberty and justice for all, but that doesn't make it a prayer.
NEWDOW: First of all, I don't think that we want our that the purpose of the Pledge of Allegiance is to disagree that it's liberty and justice for all. I think the whole purpose of the pledge is to say that, and this Court has stated it's an affirmation of belief, an attitude of mind when we pledge, and I think you have to take all the words.
It says under God. That's as purely religious as you can get and I think it would be an amazing child to suddenly come up with this knowledge of the history of our society and and what our nation was founded on.
REHNQUIST: Mr. Newdow, what if, instead of the Pledge of Allegiance, the school required the children to begin their, their session by singing God Bless America? Would that make your case weaker or stronger?
NEWDOW: I don't think so. If it was … well, if it ...
REHNQUIST: Well, you don't think weaker or you don't think stronger?
NEWDOW: I, I think that if, if they stood up the child and they said, Stand up, face the flag, put your hand on your heart and you say God bless America, I think that would clearly violate the line as well, just as in God we trust.
NEWDOW: Imagine you're this one child with a class full of theists and you have this idea that you want to perhaps at least consider and you have everyone imposing their view on you. ... There's a principle here and I'm hoping the Court will uphold this principle so that we can finally go back and have every American want to stand up, face the flag, place their hand over their heart and pledge to one nation, indivisible, not divided by religion, with liberty and justice for all.