by Peter Irons
When the case reached the Supreme Court, Rosenberger was represented by a noted University of Chicago law professor, Michael McConnell, who had advocated the “accommodationist” position on religious issues in many law review articles. Building on Jay Sekulow’s successful arguments in the Mergens and Lamb’s Chapel cases, McConnell framed Rosenberger as a free speech case, in which the University of Virginia employed “viewpoint discrimination” to block the distribution of religious messages, while it allowed other student groups to propagate their views.
The Rosenberger case split the Supreme Court into two separate factions, with Justice O’Connor once again the swing vote. Striking down the university’s denial of funding for Wide Awake, Justice Anthony Kennedy wrote for a majority of five, citing Justice Black’s statement in Everson that government must be neutral in matters of religion and that university officials had exhibited “pervasive bias or hostility to religion, which would undermine the very neutrality the Establishment Clause commands.” In a brief concurring opinion, Justice O’Connor restated her endorsement test, writing that the “widely divergent” viewpoints of student publications, many of which took controversial political stands, “makes improbable any perception of government endorsement of the religious message” of Wide Awake.
Four justices, however, dissented in the Rosenberger case. Justice David Souter, writing for himself and Justices John Paul Stevens, Ruth Ginsburg, and Stephen Breyer, noted that the Court “has never before upheld direct state funding of the sort of proselytizing published in Wide Awake,” and condemned the majority ruling as “a flat violation of the Establishment Clause.” But in this case, the Free Speech Clause trumped the Establishment Clause.
Even more than they desired “equal access” for religious groups to public school facilities and funding for student publications, the ultimate goal of the Religious Right was to return prayer to classrooms and official school functions. Achieving this goal, their lawyers recognized, would require the reversal of long-standing Supreme Court precedent, from the Engel and Schempp cases of the early 1960s through Lee v. Weisman in 1992, which struck down prayer at graduation ceremonies. The problem was finding a case the Court would review, and Religious Right lawyers were delighted when the ACLU filed a challenge to school prayer that reached the Court in 1999.
This case began in 1995, in the rural town of Santa Fe, Texas, near Galveston on the Gulf Coast. Southern Baptists formed an overwhelming majority in religion, and Baptist teachers in the public schools led classroom prayers and urged students to attend Baptist revivals. Students were also instructed to bow their heads at lunch time and pray before eating. When a Mormon student questioned her teacher’s promotion of a revival, the teacher told the child she belonged to a “non-Christian cult” and was bound for hell. When the parents of two Santa Fe students, one Mormon and the other Catholic, were rebuffed in efforts to end classroom prayers and the harassment of their children, they sought legal help from ACLU lawyers, who filed the suit on behalf of “Does,” to protect their clients from widespread hostility.
The ACLU lawyers also challenged another long-standing Santa Fe tradition. For years school officials had allowed a Baptist minister to offer prayers over the public-address system at Friday night football games. In response to the lawsuit, however, they adopted a new system for conducting prayers, replacing the Baptist minister with student-led “invocations” at the games. Under a policy statement called “Prayer at Football Games,” Santa Fe senior-class members would take part in two school-sponsored elections: the first to decide whether to have prayers at games, and—if that passed by a majority vote—a second election to choose a student to deliver the prayer, from candidates who campaigned for the position. The results of the first set of elections were hardly surprising; students voted overwhelmingly to have prayers at football games, and elected a student known for her religious zeal to deliver them.
After the judge ordered Santa Fe officials to end the student-led prayers, and a federal appellate court upheld his ruling, the school board accepted Jay Sekulow’s offer to take their appeal to the Supreme Court, setting the stage for a confrontation between the ACLJ and the ACLU in the Court’s chamber. Sekulow went first in the oral arguments, pointing the justices to Mergens and Rosenberger as precedents. Student-led prayer, he said, was the kind of “private” speech protected by these cases. School officials did not select the student who led the football-game prayers or prescribe their content, and attendance at the games was voluntary. Anthony Griffin, the ACLU lawyer who argued for the Doe plaintiffs, suggested that Lee v. Weisman was the more relevant precedent. He responded to Sekulow that school officials conducted the in-school elections and provided the facilities to deliver the prayers. Griffin also noted that football team players, cheerleaders, and band members were required to attend games and received credit for their participation.
This battle of dueling precedents ended in June 2000 with a six-to-three victory for the ACLU team in Santa Fe Independent School District v. Doe. Writing for the majority, Justice Stevens first agreed with Sekulow that both Mergens and Rosenberger distinguished between official and private speech. “We certainly agree with that distinction,” he wrote, “but we are not persuaded that the pregame invocations should be regarded as ‘private’ speech. These invocations are authorized by a government policy and take place on government property at government-sponsored school-related events.” Unlike the wide variety of student clubs and publications available to high-school and university students, Stevens added, the Santa Fe policy “allows only one student” to deliver the prayers for the entire football season, and requires “that only those messages deemed ‘appropriate’ under the District’s policy may be delivered.” In this case, the Establishment Clause trumped the Free Exercise and Free Speech Clauses.
The majority opinion provoked a bristling dissent from Chief Justice Rehnquist, joined by Justices Scalia and Thomas. “The Court distorts existing precedent to conclude that the school district’s student-message program is invalid on its face under the Establishment Clause,” Rehnquist wrote. “But even more disturbing than its holding is the tone of the Court’s opinion; it bristles with hostility to all things religious in public life.”
Religion cases make up only a small fraction of the Supreme Court’s docket, but they often ignite political and legal fires among partisans on both sides of the growing church-state divide in American society. Although the Santa Fe decision in 2000 settled the school-prayer debate, in the courts if not the southern towns in which “voluntary” prayer continued, conflicts over other religion issues brought new cases to the Court in the subsequent five years. The razor-thin presidential victory of George W. Bush in 2000 not only placed a “born-again” Christian conservative in the Oval Office, but also encouraged Religious Right legal groups to hope that Supreme Court justices had read the election returns and would be more receptive to arguments that “we are a religious people whose institutions presuppose a Supreme Being,” as Justice William O. Douglas—one of the Court’s great liberals—had written in 1952.
It was not the Religious Right, however, but church-and-state separationists who initiated a trio of cases that challenged invocations of a “Supreme Being” in such institutions as public schools, courthouses, and state capitals. These lawsuits were filed by such diverse plaintiffs as an emergency room doctor, a retired disk jockey, and a homeless man who lived in a tent. They were united only by convictions that public acknowledgments of a Supreme Being violated the Establishment Clause, regardless of the Christian majority’s sentiments.
Dr. Michael Newdow, whose challenge to the words “under God” in the Pledge of Allegiance reached the Supreme Court in 2004, was born in 1953 and raised in a nonpracticing Jewish family. He rejected any belief in God at an early age. “I was born an atheist,” he later said. His mother, Roslyn, agreed that her son is “an unusual person” who had “always done his own thing
.” Despite, or perhaps because of, his contrarian nature, Newdow compiled an impressive academic pedigree. He not only graduated from Brown University and the University of California at Los Angeles Medical School, but later obtained a law degree from the University of Michigan. Newdow also became a father in 1994, although he never married his daughter’s mother. When his daughter entered first grade in 1999, in the Sacramento bedroom suburb of Elk Grove, Newdow filed a suit in federal court against the school district in which students recited the Pledge every morning in California public-school classrooms, as required by state law.
Newdow objected, in fact, not to the Pledge itself, but only to two words that Congress added in 1954, at the height of the cold war against “godless communism.” Lobbied by the Knights of Columbus, a Roman Catholic men’s organization, Congress inserted the words “under God” between the words “one Nation” and “indivisible” into the Pledge, which had been first composed in 1892 to commemorate the four-hundredth anniversary of Columbus’s “discovery” of America. Back in 1954 the nation was not divided in opposing Soviet communism or professing belief in God, and those few Americans who dissented on these issues kept largely silent to avoid congressional inquisitions or public hostility.
Dr. Newdow, however, was anything but silent, and seemed to relish the publicity that followed his lawsuit against the Elk Grove schools in 2001. He had decided to represent himself in court, suspicious that ACLU lawyers and others who offered legal support would minimize his claim that atheists were a “despised minority” and had been the real target of congressional insertion of “under God” into the Pledge. Newdow was unfazed when a federal district judge dismissed his complaint without a hearing, and promptly filed an appeal with the Ninth Circuit appellate court in San Francisco, arguing the case himself against the lawyer for the Elk Grove school district.
The media paid little attention to the case until June 2002, when the three-judge appellate panel dropped a political bombshell, with two judges ruling that the “under God” words constituted an impermissible endorsement of “monotheism.” Judge Alfred T. Goodwin, placed on the bench by President Nixon, wrote that “a profession that we are a nation ‘under God’ is identical” to professing that we are a nation “under Jesus” or “under no god, because none of these professions can be neutral with respect to religion.” Politicians in both parties exploded with outrage. President George W. Bush denounced Goodwin’s ruling as “outrageous,” and the Senate voted 99-0 to support the Pledge in its current form. Some Religious Right groups launched petition campaigns, demanding that Congress impeach Judge Goodwin.
After the Supreme Court granted the Elk Grove district’s appeal of Goodwin’s ruling, Religious Right groups filed a mountain of “friend of the court” briefs supporting the Pledge, while the ACLU, Americans United for Separation of Church and State, and groups ranging from atheists to Buddhists and liberal Christian theologians filed a shorter stack of briefs on Newdow’s side. Dr. Newdow faced another judicial roadblock on his path to the Court. He and his daughter’s mother, Sandra Banning, were locked in a bitter custody battle in California state courts. Banning had become a “born-again” Christian, and said she had no problem with their daughter reciting the Pledge. Judge Goodwin’s opinion had assumed that Newdow had legal standing under a joint custody ruling to represent his daughter’s interests, but the Supreme Court had asked both sides to address the standing issue, which threatened to derail the case without a ruling on the constitutionality of “under God” in the Pledge.
Newdow argued his own case in the Supreme Court, winning plaudits from the press for fielding hostile questions with aplomb and wit. Whether the justices were equally impressed was hard to discern, since a majority of five declined to consider the merits of his case, ruling that he lacked standing to represent his daughter. Justice Stevens, writing for himself and Justices Souter, Ginsburg, Breyer, and Kennedy, conceded that Newdow had a “right to instruct his daughter in his religious views.” But the California courts had not yet resolved the custody dispute between Newdow and Sandra Banning. “When hard questions of domestic relations are such as to affect the outcome,” Stevens wrote, “the prudent course is for the federal court to stay its hand rather than reach out to resolve a weighty question of federal constitutional law.” Most likely, based on his past votes in Establishment Clause cases, Stevens would have sided with Newdow’s challenge to “under God” in the Pledge. But he also most likely recognized that a majority of his colleagues would have differed, and made a “prudent” decision to duck the constitutional question.
Three justices wrote separate concurring opinions, each willing to brush aside the standing question and eager to rule against Newdow on the merits. Chief Justice Rehnquist wrote that reciting the Pledge “is a patriotic exercise, not a religious one; participants promise fidelity to our flag and our Nation, not to any particular God, faith, or church.” On her part, Justice O’Connor confessed that the “under God” phrase presented a “close question” under the Establishment Clause, but concluded that it was a form of “ceremonial deism” and did not signify “a government endorsement of any specific religion, or even of religion over non-religion.” Justice Antonin Scalia had recused himself in the case, after making a speech that criticized the Ninth Circuit ruling, but he would certainly have joined the opinion of his conservative colleague Clarence Thomas. Acknowledging that under the Court’s precedents, most notably Lee v. Weisman, “the Pledge policy is unconstitutional,” Thomas went on to say that Lee “has no basis in law or reason” and should be overruled, consistent with his view that the Establishment Clause was solely “intended to prevent Congress from interfering with state establishments.” With this range of divergent views, and with the probable defection of Justice Kennedy had the Court reached the merits, it was not surprising that Justice Stevens took the “prudent” course of deferring the Pledge issue to a later time.
Michael Newdow had predicted a “slam-dunk” ruling in his favor, but this setback did not curb his eagerness to resume the game. He quickly recruited eight parents in the Elk Grove district and filed another Pledge challenge in the Sacramento federal court, this time as an attorney, having taken and passed the bar exam in 2002. In this round, he won a ruling in September 2005 from Judge Lawrence Karlton that Judge Goodwin’s Ninth Circuit decision remained as binding precedent, and that Elk Grove schools must eliminate “under God” from Pledge recitals. Pending the district’s appeal from his ruling, Judge Karlton stayed his order. Elk Grove students, including Newdow’s daughter, still pledge allegiance to “one nation under God,” but Newdow is already preparing for his second Supreme Court argument, still confident of ultimate victory.
Television crews packed up their cameras and microphones on the Supreme Court steps after the Pledge arguments, and they returned almost a year later, on March 2, 2005, to film the crowds that gathered for arguments in three more Establishment Clause cases. The issue in these cases, which began in two rural Kentucky counties and the Texas capital of Austin, involved public displays of the Ten Commandments. Whether or not the justices relished another round of arguments in divisive religion cases is impossible to say, but they had little choice, since federal appellate courts had issued conflicting rulings on Ten Commandments displays. Such a “circuit split” virtually guaranteed Supreme Court review, to provide a uniform legal standard for lower-court judges.
Unlike the words “under God” in the Pledge, which refer to no particular deity and could been seen—as Justice O’Connor noted in Michael Newdow’s case—as a form of “ceremonial deism,” the Ten Commandments come straight from the Bible and are sacred only to Jews and Christians. “I am the Lord your God,” states the first, followed by the command that “You shall have no other gods before me.” Jews and Christians differ on the precise wording of the Commandments, as do Catholics and Protestants, and even different Protestant denominations. None of these religious believers, however, dispute th
eir divine inspiration and source. Even nonbelievers agree that three of the Commandments—proscribing murder, theft, and perjury—have a legitimate place in American law, although the proscription of adultery has lost its legal sanction in most states, along with “taking the Lord’s name in vain” and working on the Sabbath. Most people also agree that honoring one’s parents and not coveting your neighbors’ property are good moral principles.
But the disputes that brought the Kentucky and Texas cases before the Court were not over standards for legal and moral behavior, but over whether the undeniable and solely religious nature of the first five Commandments—and the inclusion of the last five in the same biblical text—proscribes their display in public places. Recent polls show that more than 70 percent of the public and almost 90 percent of evangelical Christians support such displays. Even federal judges, whose legal commandments include the Constitution’s first ten amendments, have lined up on opposite sides in Ten Commandments cases, as the Supreme Court recognized when it agreed to umpire this dispute.
