WASHINGTON – A California third-grader was not allowed to watch her father argue before the Supreme Court that the Pledge of Allegiance (search) should be struck down in public schools because it contains the phrase "under God." (search)
Even though a state judge said she could not attend Wednesday's session, some of the justices seemed worried about the eventual impact on her.
• Raw Data: Elk Grove Unified Sch. Dist v. Newdow (pdf)
Justice Anthony M. Kennedy told Michael Newdow (search), the atheist who brought the case, that he was asking the court to "exercise the extraordinary, the breathtaking power to declare federal law unconstitutional."
"It seems to me, that your daughter is the one that bears the blame for this. She's going to face the public outcry, the public outrage," Kennedy said.
Newdow said he was not worried about adverse consequences for the girl, who has not been named in court records.
"My daughter's going to be able to walk around and say that 'my father helped uphold the Constitution of the United States,'" he responded as a rapt, packed courtroom watched an unusually passionate argument in a case that will decide whether millions of public schoolchildren may continue pledging allegiance to one nation "under God."
On the other side, Bush administration lawyer Theodore Olson said the pledge reflects America's religious heritage.
"It 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," Olson said.
That view was loudly represented outside the court, with scores of demonstrators reciting the pledge and carrying signs that read, "In God We Trust."
Sandra Banning (search), the mother of the girl, also was in the courtroom. She opposes Newdow's complaint.
"I hope and pray that they will support our history, the traditions of our nations and the values that we hold dear," said Banning, who never married Newdow and has primary custody of the girl. "We should be proud of our heritage and proud of our history and not succumb to popular culture."
Terence Cassidy, the attorney for the Sacramento-area school district in the case, asked the court to consider "what is in the best interest of the child."
Newdow had prevailed in one respect before Wednesday's argument began. He had asked Justice Antonin Scalia to step aside because of remarks that seemed to prejudge the case. Scalia complied.
If the rest of the court agrees with Newdow now, it could declare that the phrase "under God" breaches the figurative wall separating church and state. That would mean an end to the Pledge of Allegiance as generations of American schoolchildren have known it.
Or, as several justices indicated during arguments, the court could rule that the words are a benign and ceremonial part of a traditional, patriotic exercise.
"We have so many references to God in our daily lives today," Justice Sandra Day O'Connor told Newdow.
If the pledge cannot refer to God, the justices asked, what about the phrase "In God We Trust" on U.S. currency? What about dating laws and government proclamations with the notation, "in the year of the Lord?"
The Supreme Court already has ruled that schoolchildren cannot be forced to say the pledge, but Newdow says that is not good enough. When a teacher, paid by taxpayers, stands up and leads the pledge, it is unrealistic to expect small children to opt out, Newdow said.
Newdow is fighting not only his daughter's school, but also the Bush administration and a majority of American public opinion.
He said that his daughter was not an atheist, but that justices should consider her views as a developing young person.
"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," he told the court.
"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."
The case is Elk Grove Unified School District v. Newdow 02-1624.