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THE NATION | COLUMN ONE

They Pray for Judicial Restraint

Advisors to a volatile atheist hope he is up to the delicate task of arguing his Pledge of Allegiance case before the Supreme Court.

March 23, 2004|Maura Dolan | Times Staff Writer

SACRAMENTO — 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.

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