FFRF and Newdow challenge "under God" in Pledge in NH
Lawyer and atheist activist Michael Newdow (see site: Restore our Pledge of Allegiance) and the Freedom From Religion Foundation have filed a lawsuit in New Hampshire, challenging the Constitutionality of teacher-led recital of the Pledge of Allegiance in public schools, stating that the Pledge's inclusion of the words "one Nation, under God," is “sectarian religious dogma."
The Christian Post has reported on the story here:
The California atheist whose effort to strip the phrase “under God” from the Pledge of Allegiance was rebuffed by the U.S. Supreme Court three years ago has joined two parents to pursue the same legal battle.
Michael Newdow is now representing an anonymous New Hampshire couple who filed a suit last week in the U.S. District Court against a Hanover school district for leading their children in reciting the Pledge with phrase “under God.”
The couple, only identified as "Jan and Pat Doe,” contend in their lawsuit that the two-word phrase, which they describe as “sectarian religious dogma,” should be declared unconstitutional.
"By placing the religious words 'under God' into the Pledge, Congress not only interfered with the patriotism and national unity the Pledge was meant to engender, but it actually fostered divisiveness . . . in a manner expressly forbidden by the Constitution,” the suit states.
Although New Hampshire law says that Pledge recital is voluntary, the parents in the case say it is still a problem:
the two plaintiffs still believe that by including the phrase into the pledge, the district is “endorsing the religious notion that God exists” and thereby creates a “societal environment where prejudice against atheists … is perpetuated,” according to the suit.
The Hanover case represents only one of a string of attempts by Newdow to challenge the pledge.
I was personally involved with Mike Newdow in his efforts to find plaintiffs in every state in order to challenge the "under God" wording in the Pledge. I chronicled my experiences in IIDB's PA&SA forum in 2004. You can read them here: Michael Newdow asked me to be a Pledge Plaintiff and Step 2 in my Pledge Plaintiff process. In the end, my husband did not want our family to face the scrutiny and prejudice that we would certainly endure if we filed a lawsuit. I also commented when the Supreme Court rejected Newdow's case, saying that he didn't have standing to file suit, here: Newdow Challenge Rejection hits home for me. Part of the problem with my participation in such a lawsuit is that as a chapter leader for Americans United for Separation of Church and State, I was unable to publicly get involved in a Pledge case, because AU's position is that "now is not the time" to pursue such litigation.
The Nashua Telegraph has a very good story about this latest lawsuit in New Hampshire, here.
Their case involves a dispute that has simmered since 1954, when Congress and President Eisenhower added the words "under God" to the United States' Pledge of Allegiance, after years of lobbying by Christian groups.
Two years later, in 1956, Congress adopted "In God We Trust" as the country's official motto. Newdow has also challenged that phrase, printed on all U.S. currency, but courts have rebuffed him by ruling the phrase has no religious significance.
The U.S. Supreme Court dodged the divine bullet in 2004, when it ruled Newdow had no standing to challenge the law on behalf of his daughter because he wasn't the custodial parent.
Justice Clarence Thomas and former justices William Rehnquist and Sandra Day O'Connor made clear in concurring opinions that they had no problem with mentions of God in public ceremonies or the Pledge. The justices argued merely invoking God does not amount to an endorsement of any religion.
The notion that "God is not religious," which strikes me as being ludicrous, is called "ceremonial deism." Wikipedia has an accurate description of it: Ceremonial deism
Ceremonial deism is a legal term used in the United States for nominally religious statements and practices deemed to be merely ritual and non-religious through long customary usage. Proposed examples of ceremonial deism include the reference to God introduced into the Pledge of Allegiance in 1954, and the phrase "In God We Trust" on U.S. currency.
The term was coined in 1962 by the then-dean of Yale Law School, Eugene Rostow, and has been used since 1963 by the Supreme Court of the United States to assess exemptions from the Establishment Clause of the First Amendment to the U.S. Constitution. Neither of the above two examples have yet been ruled upon by the Supreme Court.
I believe that the ceremonial deism concept is something that the Supreme Court must revisit. Unfortunately, given the Court's current makeup, I don't think that they will rule that ceremonial deism creates a Constitutional conflict. I, personally, believe that the phrases "one Nation under God" and "in God we trust" are statements of faith, and should not be endorsed or promoted by the US government.
One reason why Americans United has not yet taken legal action against ceremonial deism (or the Pledge or IGWT) is because they feel that we must first change the way society feels about this issue. There must be a cultural shift in the way that the religious majority views the government's use of faith statements before any legal challenge can be successful. They feel that Newdow's strategy of bringing the case to all the Federal courts is not a good idea. This is part of AU's rationale:
[F]iling in all 12 federal Circuits is overly-ambitious and inadvisable. Some of the Circuits are quite hostile to pro-separationist positions and it is virtually certain that we would lose in these Circuits. We've already lost this very issue in the 7th Circuit in the Sherman case; a district court in that Circuit, and a subsequent panel, is going to be bound by that decision. Similarly, I do not think the 3rd Circuit is a good Circuit for church-state issues. They recently decided a bad Ten Commandments case and have recently issued other bad rulings as well. Other Circuits (e.g., the 1st, 2nd, 6th, and 9th) are much more favorable to pro-separationist positions. Furthermore, it's impossible to litigate 12 cases well; the strategy will necessarily entail doing a less-then-perfect job in all of the cases.
There is also the issue of paying for such litigation, which would be costly. Some public education work would have to be done, and no church-state or nonbelief group has the budget to sponsor a PR campaign.
Michael Newdow, on the other hand, feels that someone, some time, must file suit, and that it may as well be now, rather than later.
When I get the official FFRF report about their involvement with this case, I will post it here.
Click here to read the Secular Coalition for America's position piece on the Pledge:
The Secular Coalition for America opposes government-coerced recitation of the religious Pledge of Allegiance by public school children. Our community is relegated to second-class citizenship when patriotic exercises require an affirmation of supernatural belief.
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