Supreme Court cannot shy away; atheists deserve religious equality

Wednesday, the Supreme Court heard oral arguments for case 02-1624, Elk Grove Unified School District v. Newdow, better known as the Pledge of Allegiance Case. The case was appealed by Elk Grove after the ninth district circuit court held that Michael Newdow?s claim of the phrase ?under God? as governmental establishment is correct.
Newdow, a self-proclaimed atheist, is arguing pro se (representing himself) and claims that his daughter is being indoctrinated against the anti-establishment clause of the First Amendment through the phrase. This phrase was a product of governmental paranoia during an uneasy time; when the Pledge was first written, it contained only a secular, patriotic message. In 1954, when organized prayer in public schools was still legal and commonly accepted, a unanimous vote in Congress added ?under God? to the Pledge to distinguish us from the godless communists. But just as McCarthyism has been dismissed as overkill, ?under God? has long outlived what scant, superficial purpose it originally had.
Nine out of 10 Americans believe the phrase should stay, but more highly educated Americans are less likely to agree. The government has a long tradition of ignoring minorities, whether they be racial, gender, or religious, because it tends to suspect that minority interests will threaten the common good. In this case, it is the will of the majority that threatens our freedom by placing personal beliefs above the law: ?Congress shall make no law respecting an establishment of religion.? After 50 years, the majority of Americans have gotten used to saying ?under God,? and may even feel strongly about it, but their illogical nostalgia is undermining the Constitution. Until Brown v. Board of Education 50 years ago, segregation reigned in America?s public schools because people clung to what had always been, instead of being guided by ideals about what should be.
While only Justice Antonin Scalia has formally recused himself from the case, other justices have revealed their own strong religious biases. During oral arguments, conservative Chief Justice William Rehnquist cited the unanimity of the original vote, asking how the phrase could be divisive if all of Congress agreed with it. Newdow responded in stride that a bias against atheists in America prevents them from being elected to such leadership positions.
The Court has a way to follow the Constitution while leaving the seemingly theocratic ?under God? in place: Newdow only has partial physical custody ? and no legal custody ? of his daughter, and the court may find that he had no right to bring forth the suit at all, regardless of the Constitutional implications. The Court must realize that regardless of Newdow?s custodial arrangements, the case is a legitimate protest on behalf of all atheists, especially atheist parents. If Newdow does not have his case heard, eventually someone else will try.
If the Court kills the case based on Newdow?s custody problems, it would only be the latest installment in a series of impotent decisions in interpreting the First and Fourteenth Amendments. The court is using convenient loopholes set up by the writ of certiorari, including the outline of their goal for hearing the case. When organizing it, they realized the custody issue could later be used as an easy out if the Court wanted to ignore the major question.
If the Court has the integrity, it will overlook its own bias and interpret the Constitution: that ?under God? is and always was an inappropriate Congressional establishment. Our government should respect the separation of church and state outlined in the Constitution, regardless of individuals? beliefs; this era could inaugurate a new era of religious tolerance.