Defending God

Given the coverage of the upcoming United States Supreme Court case regarding the Pledge of Allegiance, you might get the impression that local atheist Michael Newdow will be all by himself in front of the justices on March 24. Newspapers throughout Northern California, including The Sacramento Bee, have focused on the gutsy doctor turned lawyer who has chosen to represent himself in the final phase of a long battle against the daily recitation of the Pledge of Allegiance in schools. But he won’t be alone. Newdow’s original case was brought against the Elk Grove Unified School District on behalf of his daughter (see “Newdow Redux”; SN&R News; December 19, 2002). That district was represented before a three-judge panel from the 9th Circuit Court of Appeals by Terence J. Cassidy of the Sacramento law firm Porter, Scott, Weiberg & Delehant. Cassidy, a graduate of McGeorge Law School, will face Newdow again in front of the Supreme Court next week. And this won’t be Cassidy’s first visit to the highest court in the land. Last time, he won.

“The prior case before the Supreme Court,” said Cassidy, sitting in a suit and tie in a small conference room used by his law firm, “was one on behalf of the Sacramento County Sheriff’s Department.”

Cassidy may have lost the first pledge appeal, but he did manage to convince the U.S. Supreme Court in 1997 that under the “shock the conscience” standard, a Sacramento deputy who participated in a high-speed chase that eventually killed a fleeing motorcyclist was not guilty of a violation of civil rights. To meet the standard the court decided on, Cassidy said, the officer would have had to act “almost brutally or maliciously for the very purpose of causing harm.”

Cassidy spoke with great respect about arguing before the Supreme Court, calling such opportunities “the epitome of any legal career.” But his past win has not, apparently, given Cassidy an overbearing confidence. He was personally reserved, speaking slowly and carefully when answering SN&R’s questions, chuckling as he realized he was sitting almost still rather than employing his usual animated gestures. “I’ll loosen up a little,” he said.

“The initial two-to-one decision,” said Cassidy, speaking of his history with the pledge case, “was a finding by the 9th Circuit Court of Appeals that the 1954 amendment to the Pledge of Allegiance, which added the words ‘under God’ was unconstitutional.”

The firm filed a petition for a rehearing, and the three judges agreed to reconsider their decision. “They determined that they would limit the scope of their holding and not find the pledge itself unconstitutional or the ’54 amendment unconstitutional but that the school-district policy was unconstitutional,” said Cassidy. That policy, he explained, provided for the “daily recitation of the Pledge of Allegiance by willing students.”

This idea of willingness forms the basis of Cassidy’s case for the constitutionality of district policy. The Supreme Court had found in previous decisions, he said, that the pledge was legal as long as students could choose to opt out. An atheist’s rights are no different than the rights of any religious student who chooses not to recite the pledge, according to Cassidy, who relies on schools to train students to respect such religious, political and moral choices. Cassidy also said candidly that Newdow may have a hard time convincing the Supreme Court justices that their previous decisions regarding the pledge were wrong.

But another issue the Supreme Court has agreed to consider may make the entire argument moot. Cassidy will argue that Newdow, who has only partial physical custody of his daughter, does not have “standing,” or the legal right, to bring the case at all. Newdow has recently received increased custody based on a new court order, but that doesn’t worry Cassidy.

“The orders continued to provide that Ms. [Sandra] Banning, the mother of their daughter, has the final decision-making authority with respect to the upbringing of the daughter,” he said.

Banning has been quoted in other media as supporting the pledge and her daughter’s recitation of it.

Though the Supreme Court is expected to consider the “issue of standing” before moving on to the constitutionality of the pledge, nothing’s certain.

“Oftentimes, questions are asked by justices of the Supreme Court before you’ve really had an opportunity to get into your full presentation of the case,” said Cassidy. “The justices may move on to the [constitutionality] issues before ever reaching, or even discussing, the standing issue. It would then be important for me to try to raise that issue as we go along.”

To prepare, both sides are participating in moot courts, visiting various law schools to present their cases in front of various panelists. So far, according to the Oakland Tribune and other Northern California papers, Newdow has done well. Cassidy still faces moot-court challenges on the East Coast.

“[Panelists] should be asking you the more difficult hypothetical questions,” said Cassidy, like “what other types of language could be used to be recited by students at the outset of the day as a patriotic exercise?”

Because Cassidy believes the pledge is a patriotic exercise, and not a prayer, he equates its recitation to the study of all kinds of historical records, including inaugural addresses and other political documents that make reference to God.

Almost as a preview, Cassidy addressed the issue in detail: “I think there has been an inappropriate emphasis on dissecting the pledge down to two words, and the pledge has to be taken as a whole. … There’s no question that it was changed in 1954, but the legislative history supports that this was done for historical reasons. It’s a quote of Lincoln from the Gettysburg Address and likewise reflects our founding fathers’ belief in the fact that our government is one simply of the states and that the rights we have as citizens are derived from a higher authority.”

To prepare to convince the justices, Cassidy said, he’ll go east early and lock himself away with law partner Michael Pott, who will help him prepare. “We’ll be rereading all the briefs, formulating arguments and answers to questions, and hopefully getting ready for the big test on March 24.”

As for Newdow’s early success in the moot courts, Cassidy responded cautiously. "I would say that a person preparing to argue before the United States Supreme Court should not necessarily place too much weight on exactly what the feedback is on moot court. … The question is: What do the justices of the United States Supreme Court think, and what are they going to rule?"