So, Michael Newdow argued his case before the Supreme Court yesterday. Having already written a lengthy article on why Newdow should win, I think the most efficient way to approach this topic is ‘fisking’ the New York Times’ excerpts:

CHIEF JUSTICE REHNQUIST: What — what you say is, I pledge allegiance to the flag of the United States of America and to the republic for which it stands. So that certainly doesn’t sound like anything like a prayer.MR. NEWDOW: Not at all.

CHIEF JUSTICE REHNQUIST: Then why isn’t General Olson’s categorization of the remainder as descriptive, one nation under God, with liberty and justice for all? You can disagree it’s under God, you can disagree that it’s — has a liberty and justice for all, but that doesn’t make it a prayer.

Here’s the problem: the words “under God” were specifically inserted into the Pledge where they had never existed before. Had the text been a cohesive whole which included “under God” in the original text, then Rehnquist might have had a point. But the 1954 addition was meant specifically to exclude atheists. Why, not only that, but let me print here an excerpt from the sermon of the Congressional Chaplain, delivered at the 1954 Flag Day ceremony–quoted from the congressional record (emphasis mine):

To put the words “under God” on millions of lips is like running up the believer’s flag as the witness of a great nation’s faith. It is also displayed to the gaze of those who deny the sacred sanctities which it symbolizes. On that June day, within a few minutes after the signature of the President had written “under God” in the Pledge of Allegiance, the bill that legalized it leaped to life in a scene silhouetted against the white dome of the Capital. There stood Senator HOMER FERGUSON, who had sponsored the resolution in the Senate, and with him a group of legislative colleagues from both houses of Congress. As the radio carried their voices to listening thousands, together these lawmakers repeated the pledge which is now the Nation’s. Then, appropriately, as the flag was raised a bugle rang out with the familiar strains of “Onward, Christian Soldiers!”

Anyway,

CHIEF JUSTICE REHNQUIST: What if, instead of the Pledge of Allegiance, the school required the children to begin their — their session by singing God Bless America? Would that make your case weaker or stronger? …MR. NEWDOW: I think that if they stood up the child and they said, stand up, face the flag, put your hand on your heart and you say God bless America, I think that would clearly violate the line as well, just as in God we trust.

Well, “God Bless America” was originally written by Irving Berlin as part of the summer camp musical revue, “Yip Yip Yaphank.” If Congress amended “The Age Of Aquarius” to include a reference to God, and then made its recitation a daily requirement of public schools…

MR. NEWDOW: The issue is whether or not government can put that idea in her mind and interfere with my right. I have a absolute right to raise my child as whatever I see. Government is weighing in on this issue.GINSBUSRG: No, you don’t, you don’t. You — there is another custodian of this child who makes the final decision who doesn’t agree with you.

Unfortunately for Newdow, the standing issue leaves a loophole for the liberal justices to avoid making a widely unpopular ruling. We’ll see how that pans out.

MR. NEWDOW: Not — not under what the — this Court has to distinguish in this case. No one — when this Court opens, God save this honorable Court, nobody’s asked to stand up, place their hand on their heart and affirm this belief. This Court stated in West Virginia v. Barnette that this is an affirmation, a personal affirmation.JUSTICE O’CONNOR: And you have no problem with, in God we trust, on the coins and that sort of thing?

Of course he does, he’s said so on the record.

MR. NEWDOW: Well, it’s — again, the Establishment Clause does not require a prayer. To put the Ten Commandments on the wall was not a prayer yet this Court said that violated the Establishment Clause. To teach evolution or not teach evolution doesn’t involve prayer, but that can violate the Establishment Clause. The issue is is it religious, and to say this is not religious seems to me to be somewhat bizarre.And as a matter of fact, we can look at the standing argument and we can look at Elk Grove Unified School District’s brief, in which eight times they mention that this is the mother involved with religious upbringing, they keep talking about religious upbringing, 18 times they spoke about religious education, religious training, religious interest. All of this has to do with religion, and to suggest that this is merely historical or patriotic seems to me to be somewhat disingenuous.

Zing!

JUSTICE BREYER: But what I’m thinking there is that perhaps when you get that broad in your idea of what is religious, so it can encompass a set of religious-type beliefs in the minds of people who are not traditionally religious, when you are that broad and in a civic context, it really doesn’t violate the Establishment Clause because it’s meant to include virtually everybody, and the few whom it doesn’t include don’t have to take the pledge.
…
…JUSTICE BREYER: So it’s not perfect, it’s not perfect, but it serves a purpose of unification at the price of offending a small number of people like you. So tell me from ground one why — why the country cannot do that?

Here is the familiar argument by statistical irrelevance. Hey Justice Breyer, if the purpose of “under God” is merely to promote unification at the expense of excluding a small number of people, then Congress would have done much better (at least numerically speaking) by changing the Pledge to, “one nation, except the Jews.” Oh, wait… that would constitute religious discrimination, wouldn’t it? It’s a good thing the current Pledge isn’t exclusionary based on religious beliefs… oh, wait…

MR. NEWDOW: You’re referring to the two words, under God?JUSTICE BREYER: Yeah, under God is this kind of very comprehensive supreme being, Seeger-type thing.

MR. NEWDOW: I don’t think that I can include under God to mean no God, which is exactly what I think. I deny the existence of God, and for someone to tell me that under God should mean some broad thing that even encompasses my religious beliefs sounds a little, you know, it seems like the Government is imposing what it wants me to think of in terms of religion, which it may not do. Government needs to stay out of this business altogether.

Newdow shuts Breyer down!

JUSTICE SOUTER: Well, I think the argument is not that the Government is saying, we are defining this as inconsequential for you. I think the argument is that simply the way we live and think and work in schools and in civic society in which the pledge is made, that the — that whatever is distinctively religious as an affirmation is simply lost. It — it’s not that the — that the Government is saying, you’ve got to pretend that it’s lost. The argument is that it is lost, that the religious, as distinct from a civic content, is close to disappearing here.

Lost on whom, Justice Souter?