Legal Commentary

Jay Wexler has a post below discussing how Michael Newdow will be doing the theme song for his book -- am I crazy to wonder what that means? -- and asking what people think of him.  For me, it brought back some memories about the oral argument in the Pledge case.  I remember people being frustrated with Newdow (whom I've never met, btw) as the Pledge case was going up, especially with him deciding to do oral argument himself, going heads-up against Solicitor General Olson.  But that frustration was overblown.  Oral argument wasn't going to change minds (on the Establishment Clause issue, anyway).  And Newdow broke some ground.

Within the first minute of oral argument, I remember Newdow breaking out of the jargon: "I am an atheist," he said.  "I don't believe in God."  Not your ordinary oral argument.  And I think that's what made the oral argument: the obvious hurt below the surface of Newdow's presentation, the obvious fact that he was unavoidably a religious minority, and the obvious incompatibility between the Pledge and his religious beliefs.  It led to this weird dynamic.  A couple of the memorable moments:

At one point, the Chief Justice led Newdow backwards into making a point for his side.  Rehnquist asked Newdow what the vote in Congress was for the adoption of the Pledge, Newdow responded that it was unanimous, and the Chief dryly observed, "Well, that doesn't sound divisive."  There was some laughter.  But Newdow had a response -- he said the reason why it was unanimous was because no atheist could get elected to public office.  That caused much more laughter.  And applause.  The Chief had to threaten to clear the courtroom.  Newdow went on, pointing out that several states apparently still have laws on the books barring atheists from public office.  Justice Ginsburg tried to make him feel better, pointing out that those laws were unconstitutional -- but Newdow explained that his real point, which she surely understood the first time, was just that atheists are so far outside of the mainstream that they almost don't count politically.

But the part of the oral argument I remember most was this short, relatively obscure bit with Justice Breyer that I'm sure no one else still thinks about.  The Supreme Court has these two law-and-religion cases, Welch and Seeger.  They were Vietnam-era cases about draft exemption.  The relevant statute required conscientious objectors to profess a belief in a "Supreme Being" to get an exemption.  The Court both in Welch and Seeger works fairly hard to interpret "Supreme Being" so as to include nontheists.  (The right thing to do, but hardly consistent with the statute's text.)

Anyway, at oral argument in Newdow, Justice Breyer raises these cases and asks -- well, given Welch and Seeger, don't you think that "under God" can be interpreted broadly enough to include you?  I had to look up Breyer's exact phrasing, "So it's reaching out to be inclusive, maybe to include you . . . So do you think God is so generic in this context that it could be that inclusive?  And if it is, then does your objection disappear?"  That question has always has struck me as an amazing thing to ask a person who just said he was an atheist.