The atheist who's trying to convince the U.S. Supreme Court that making public school students recite or sit through the Pledge of Allegiance with the words "under God" is unconstitutional argued his case Thursday to a learned panel of legal experts.
And he won. Sort of.
Most of the panel at the University of California, Berkeley Boalt Hall School of Law's moot court competition seemed to agree with Dr. Michael Newdow that letting public school teachers lead daily recitations of the pledge as it's now written violates the First Amendment's vow that "Congress shall make no law respecting an establishment of religion."
"It's hard to get how it's not intended to foster religion in national life," said attorney Ragesh Tangri.
"I find it difficult not to agree that this is a constitutionally prohibited situation," said attorney Joan Wolff.
University of San Francisco Professor William Bassett and Boalt Hall Professor Herma Hill Kay seemed to agree, as did Boalt Hall Professor Jesse Choper.
"I think that it should be held unconstitutional," Choper said. "But it won't be."
Several of the panelists said the high court won't want to open the legal and social can of worms of ruling in Newdow's favor; if public school kids can't be subjected to the words "under God," other plaintiffs might sue to have "In God We Trust" taken off our currency, to have "So help me God" stricken from courtroom oaths and so on.
And Choper believes the court will find "under God" to be nothing more than a ceremonial act stripped of any real religious significance by its common repetition.
Newdow -- who is both a lawyer and a medical doctor -- argued his case himself Thursday, as he will March 24 when he goes before the Supreme Court. This was his third such dry run so far, and he has several more scheduled before he goes to Washington, D.C., so that he can "keep practicing."
Arguing on behalf of the Elk Grove Unified School District -- where Newdow's daughter attended school and the target of his lawsuit -- was UC Hastings College of the Law Professor Vikram Amar.
Amar, basing his arguments on the school district's briefs, said there are "considerable doubts" about Newdow's standing to bring this suit, due to family-court custody issues between him and his daughter's mother. He said the case should be remanded to the 9th U.S. Circuit Court of Appeals with an order that the California courts be asked to clarify Newdow's custodial status. Newdow contends he shares custody with his daughter's mother but could bring the case anyway as a parent injured by the government's practices toward his daughter.
Thursday's panel was split over whether the high court is likely to remand the case for issues of standing.
On the case's merits, Amar argued that classroom recitation of the pledge isn't mandatory, and that kids who sit it out aren't being subjected to psychological coercion in the form of peer pressure.
"Exercise of one's right of conscience is not always free of complications," he said.
But Newdow said children should not have to feel singled out for refusing to participate in a government-sponsored endorsement of religion that implicitly is "telling atheists they're wrong, it is telling deists they're correct."
Newdow noted that President Bush, in a letter appended to the legal brief of Americans United for Separation of Church and State, wrote that when we pledge, "our citizens participate in an important American tradition of humbly seeking the wisdom and blessing of Divine Providence."
"I can't think of a better definition of prayer than 'seeking the wisdom and blessing of Divine Providence,'" Newdow said.
Replied Bassett: "He (Bush) is neither a theologian nor a constitutional scholar."