They Pray for Judicial Restraint
It was practice time for Dr. Michael Newdow, the atheist who will appear Wednesday before the U.S. Supreme Court to argue that the words “under God” be stripped from the Pledge of Allegiance. Things were not going well.
Arguing before a moot court at Stanford University last month, he addressed himself to someone pretending to be Justice Ruth Bader Ginsberg. As a Jew, Newdow asked, how would you feel having to say “Jesus” instead of “God”?
No, no, no, his advisors warned him. Do not bring up the justices’ personal religious views.
When a member of the moot court pulled out a dollar bill and asked him if he thought the reference to God should be removed from currency, Newdow said yes.
No, no, no, he was told. Stick to the narrow facts of your case: that minor children in public schools should not be led in recitations of a pledge that invokes religion.
Newdow, an emergency room doctor with a law degree, has not inspired confidence. That he is a neophyte, as demonstrated by his performance at Stanford, is one concern.
That he is combative and unpredictable, with a tendency to vent obsessively about what he perceives as unjust, is another. That he could become a loose cannon in the staid, structured, always-restrained world of the high court causes particular worry.
Stanford law professor Pamela Karlan, who watched Newdow in moot court, said he argued as though he were addressing a jury. But the Supreme Court does not want to hear about personal feelings, she said.
“Oral argument is very low-key and nonrhetorical,” said Karlan, who co-teaches the Supreme Court clinic that held the moot court. “You are having a conversation with the justices in a cool, intellectual way.”
Newdow had already raised eyebrows by referring to himself in some court papers as “the Rev. Dr. Michael Newdow,” head of a church he calls “The First Amendment Church of True Science.” His website said the church had three tenets: “question, be honest, do what’s right.”
On the issue of whether “God” should appear in the pledge, Newdow has plenty of ideological allies who have fewer quirks and know how to argue in court.
But Newdow, 50, said it was his case, and his alone. “I have 50 years of arguing experience,” he said in an interview in his spacious suburban Sacramento home.
Newdow will join a small club of lawyers whom the U.S. Supreme Court has permitted to appear before it even though he lacks the requisite three years of legal practice. Even rarer, he will represent himself.
The court did not say why it waived its rule for Newdow, but other lawyers speculated that the court felt it was only fair to permit him to appear because he had single-handedly won the case in a lower court.
The legal challenge is being closely watched. If Newdow wins, the ruling will probably become a hot political issue in an election year. Justice Antonin Scalia has recused himself from the case after publicly criticizing the lower court’s ruling in favor of Newdow, setting up a possible 4-4 vote that would uphold Newdow’s victory.
The man who will argue this potentially explosive case graduated from Brown University and UCLA medical school and has practiced emergency room medicine. He earned a law degree from the University of Michigan in 1988 with a notion of using it to reform medicine. The way Newdow tells it, one day several years ago he happened to be looking at money while buying soap and noticed “In God We Trust” on the currency. He hadn’t really thought about it before, but wondered how the government could get away with that. He decided he would challenge it in court as a violation of the constitutional separation of church and state.
“It’s wrong,” he said.
After he researched the question, he concluded that he had a better chance of winning if he challenged the religious reference in the Pledge of Allegiance instead. Congress had added “under God” to the pledge during the 1950s, in a burst of anti-communist zeal.
Newdow filed suit in federal court as the parent of a public school student whose teacher was leading her in the recital of the pledge every day.
When a panel of the 9th Circuit U.S. Court of Appeals ruled in Newdow’s favor in June 2002, fervent opposition swept the nation. The U.S. Senate voted 99 to 0 to support the pledge. Callers to talk shows sputtered in fury. About 100 members of Congress stood on the Capitol steps and sang “God Bless America.”
Newdow received death threats.
His law office is crafted out of attic space in his home. Multiple file cabinets containing legal research line the walls. On one wall is a poster of the U.S. Supreme Court, with pictures of the justices seated, as they are in court. Under each name is the religious affiliation of the justice.
Opposing Newdow are myriad religious and conservative groups, the school district his daughter attends, school board associations and the U.S. government. Supporting him are civil libertarians and a group that favors separation of church and state.
Some lawyers close to the case complain that Newdow is refusing to heed others’ advice. Newdow “marches to his own drummer, and he has a definite conception of what he wants to argue and how he wants to argue,” said a legal ally who declined to be identified.
Oral argument is important, the appellate lawyer said. Even though the justices by Wednesday will have read the dozens of briefs filed in the pledge case and reached at least tentative conclusions, argument can sway a vote and even change a winning case into a loser.
“If a justice hasn’t quite worked his way through a problem, the right advocate could provide just the right answer on something very subtle,” the lawyer said. " ... I don’t think they are going to be able to get that from Newdow.”
Newdow, he added, “runs the risk of going off on tangents and making points that the court won’t consider relevant.”
But USC law professor Erwin Chemerinsky, who has been coaching Newdow, said the neophyte lawyer was willing to accept help.
After Chemerinsky sent Newdow an e-mail criticizing one of his briefs, Newdow made revisions and sent it back under the heading, “Thank you, sir. Hit me again.”
“What I have tried to do is encourage him to focus on the issues that are before the Supreme Court,” Chemerinsky said.
One of the issues that may come up, and that is particularly problematic for Newdow, is the custody of his daughter. It is a subject that consumes him.
At the time he filed the pledge suit, he had joint legal custody of his daughter, now 9. Then he lost it, and regained it, feuding with her mother over everything from whether the girl should be permitted to use a public restroom to whether she should travel to Washington to hear her father argue before the high court.
Sandra Banning, the mother, has convinced a state judge in Sacramento that the girl should be removed as a party to the pledge case. As a result, Newdow must convince the high court that he personally has a stake in the case’s outcome. If he loses on the question of standing, the high court will not even have to decide whether the pledge violates the Constitution.
Banning, 44, a Christian, has told the court that their daughter is also a Christian who has no problem saying “under God.” Banning is represented by Kenneth Starr and Paul E. Sullivan in the pledge case.
“She is now a hero, the great protector of the pledge,” Newdow said sarcastically. “She has been on more shows than I have.”
Newdow and Banning never married, and for years apparently shared decisions about the child with little acrimony.
The fighting began, Newdow said, because he told Banning that “I didn’t love her and I would never love her.” He told a family law court that the girl had been conceived during a camping trip in which Banning had raped him, a claim the judge later called “incredibly disingenuous.”
Newdow and Banning now live a few miles from each other, and their daughter spends several long weekends a month with her father.
Newdow said his passion for the pledge case paled in comparison with his feelings about custody laws.
He sometimes works from 4 a.m. to 1 a.m. doing research on his custody fight. “I don’t get 50%" custody,” he said curtly, explaining his commitment. “If I get 49%, I am fighting. I want 50%, period. I have a constitutional right....”
Newdow said Banning, who declined to comment, had intervened in the pledge case because she “wants control.”
“She is a lovely person if she is not trying to stab you in the back,” he said.
On the contrary, said her lawyer, Sullivan, Banning has consistently said she does not oppose Newdow’s proceeding with the pledge case “even though she disagrees with him.”
She became involved in the case only because “Newdow attempted to use their daughter as a party to the case to move it forward,” Sullivan said.
Newdow said that the custody case had cost him hundreds of thousands of dollars and that he was living largely off savings. For his inability to have his daughter 50% of the time, he blames the “unconstitutional” family law system and the “horrible” judges who “should go to jail” for denying good parents custody.
Sacramento County Superior Court Judge James M. Mize ruled that Banning would have final say over her daughter when the couple couldn’t agree.
Newdow is the kind of person who, upon coming to a brick wall, tries to go through it rather than around it, the judge said.
“By finding fault with something and then holding onto that, it sometimes can make you miss the whole picture,” Mize said.
Newdow’s home reflects his absorption with his daughter. Her presence is everywhere: games, toys, photographs and drawings. The two-story house is next to a park, and a swing hangs from a tree in the frontyard. He softens when he talks of her.
“She is a such great kid,” he said, beaming.
And he has no doubts about his ability as a parent. “I am an unbelievably phenomenal father,” he said. “Everyone says I am a great dad.”
Newdow grew up in New York and New Jersey. His father is an atheist, but his mother practiced Judaism occasionally, he said. Although he is an atheist, Newdow said, he lights Hanukkah candles with his daughter each year to teach her tradition.
In addition to being a physician and a lawyer, Newdow is an amateur folk singer. He composes songs and sells his CDs on his website, restorethe pledge.com, for $14.92 each.
Rolling through Sacramento streets in his SUV, Newdow popped one of his CDs into the player. The song interspersed his lyrics with threats left on his home telephone recorder on the day the 9th Circuit ruled for him.
“I’ll always love my god,” Newdow sang softly on the CD. “And serve him every moment. I won’t let anger foment. I’ll always love my god. For his love I am lusting. And yet...” And then, a growling message from his machine: “You’re just disgusting.” Newdow picked up: “Could I leave his fold? No, never.” Then, another message: “I hope you burn in hell forever.”
Newdow arrived at the post office, where he picked up his legal correspondence. When he returned to the car, he flashed an envelope. The return address was the clerk of the U.S. Supreme Court.
“It’s always cool to see that,” he said with a grin.
His parents will travel to Washington to hear him argue Wednesday. His daughter won’t be there, because Banning objected. Banning will attend with her lawyer.
Win or lose, Newdow is ready for his next constitutional fight. He said he would argue in California courts that the standard used to decide custody for children -- the best interest of the child -- was unconstitutionally vague and arbitrary.
“Why did I lose” 50% custody? he lamented. “Nobody goes into this. What have I done? ... The reason I lost legal custody is because I am telling everyone in this field they are full of hooey.”
“My life is shattered,” he said later. “I get up, and I am furious all the time.” For more time with his daughter, he said, he’d “give up the pledge case in a second.”