Taking on the Pledge of Allegiance: The Media and Michael Newdow's Constitutional Challenge

218 Pages·2007·0.58 MB·English

by  Ronald Bishop

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Ronald Bishop
Foreword by Nadine Strossen
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Taking on the
Pledge of Allegiance

Taking on the
Pledge of Allegiance
The News Media and Michael Newdow’s
Constitutional Challenge
Ronald Bishop
State University of New York Press
Published by
State University of New York Press, Albany
© 2007 State University of New York
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Printed in the United States of America
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Library of Congress Cataloging-in-Publication Data
Bishop, Ronald, 1961–
Taking on the Pledge of Allegiance : the news media and Michael Newdow’s
Constitutional challenge / Ronald Bishop; foreword by Nadine Strossen
p. cm.
Includes bibliographical references and index.
ISBN 978-0-7914-7181-4 (hardcover : alk. paper)
ISBN 978-0-7914-7182-1 (pbk. : alk. paper)
1. Newdow, Michael—Trials, litigation, etc. 2. Bellamy, Francis. Pledge of
Allegiance to the Flag. 3. Flags—Law and legislation—United States. 4. Religion in
the public schools—Law and legislation—United States. I. Title.
KF228.N524B57 2007
342.7308'52—dc22
2006100311
10 9 8 7 6 5 4 3 2 1
Contents
Foreword vii
Acknowledgments xiii
Introduction 1
1 Master Myths, Frames, Narratives, and Guard Dogs 11
2 A Case of First Impression 25
3 An Impermissible Message of Endorsement 43
4 A Reputation for Unorthodox Opinions 55
5 Their Own Little World 77
6 The Good Mother 97
7 On to the Supreme Court 117
8 Tepid and Diluted 133
9 Nice Try, Young Man 147
10 We’re Saved—For Now 167
References 183
Index 199
v

Foreword
Ron Bishop’s valuable book documents in detail the media’s inaccurate
and unfair coverage of Michael Newdow’s important constitutional liti-
gation concerning two fundamental sets of rights that the Supreme Court
long has protected: first, parents’ rights to make basic decisions about the
education and upbringing of their own children—in particular, their chil-
dren’s moral and religious education—free from government coercion;1
and second, the right of all individuals, including public school students,
to be free from government pressure—even subtle and indirect pressure—
to affirm religious beliefs.2
Specifically, Newdow asserted a quite limited, although undeniably
important, claim. He challenged the “pledge policy” at his daughter’s
public school, which required that teachers daily lead the students in
“pledg[ing] allegiance to . . . one nation under God.” Newdow main-
tained that this policy violated his parental right to influence his young
daughter’s religious beliefs, and also violated the individual freedom of re-
ligion and conscience that the First Amendment’s Establishment Clause
protects from government pressure.3
Contrary to pervasive media exaggerations about the scope of New-
dow’s litigation, which Bishop chronicles, Newdow did notchallenge the re-
quirement that students recite the Pledge in its original form, before the 1954
federal law added the words “under God” expressly to counter “Godless
Communism” during the Cold War. Nor did Newdow challenge the recita-
tion of these added words in any context other than public school class-
rooms, and he certainly did not seek to strip all religious references from
public life, notwithstanding the widespread, overblown media accounts that
mischaracterized his claims in these ways, which Bishop discusses.
vii
viii Foreword
The media’s manifold distortions of Newdow’s significant case in-
cluded the failure to acknowledge that what he was seeking, above all,
was to protect his cherished parental relationship with his beloved daugh-
ter. In the face of the limitations that the family law system had imposed
on his relationship with his daughter, as a result of his custody battles
with her mother, Newdow was fighting to maintain that relationship as
fully as possible, including the core element of that relationship that the
Supreme Court had repeatedly recognized: parents’ rights to instill their
own moral or religious values in their own children, rather than permit-
ting government schools to proscribe or prescribe particular religious
beliefs for all children.
Far from lauding Newdow’s devotion to his daughter, and his de-
termination to maintain a meaningful relationship with her, to the con-
trary, the media tended to demonize him as an egocentric individualist
who was taking advantage of his biological relationship with his daugh-
ter to advance his own ideological agenda. It is especially ironic that
Newdow was most harshly assailed by spokespeople for the religious and
political right—who, as Bishop shows, were disproportionately repre-
sented in the media coverage—given Newdow’s paramount commitment
to aims that they also espouse: reducing government power to intervene
in family relationships, and, in particular, reducing the power of govern-
ment schools to impose on children majoritarian values concerning reli-
gious beliefs that conflict with their parents’ beliefs.
Even judges, including Supreme Court justices, who rejected New-
dow’s religious liberty claim, did agree with his central contention that
“he has a right to expose his daughter to [his] views [about religion] with-
out the State’s placing its imprimatur on a particular religion.”4 These
judges rejected his religious freedom claim essentially on factual—rather
than legal or principled—grounds, since they viewed the pledge as “a pa-
triotic exercise, not a religious one.”5In short, had these judges viewed
the Pledge as a religious exercise, they apparently would have upheld
Newdow’s claim. Moreover, many legal, historical, and religious experts
did fully endorse Newdow’s claim that public schools may not require
students to recite the words “under God” in the Pledge.
This substantial support for Newdow’s legal claims, including from
ideologically diverse judges and other experts, was another essential as-
pect of his case that the media coverage badly distorted. As Bishop docu-
ments, the media generally disparaged and trivialized Newdow’s legal
claims, implying that they had garnered the support of only a few judges
on an allegedly—but not actually—extremist liberal court, the U.S. Court
of Appeals for the Ninth Circuit.
Foreword ix
Consider just a few of the many facts that the media coverage ob-
scured, but which underscore the serious merits of Newdow’s religious
liberty claims, and their broad support among ideologically and reli-
giously diverse experts:
• The Ninth Circuit judge who authored the much maligned
opinion upholding Newdow’s claim, Alfred Goodwin, isa
Republican, who had been appointed to the court by a
conservative Republican president, Richard Nixon.
• The many “friend of the court” briefs that were filed in the
Supreme Court supporting Newdow’s contentions included
briefs submitted by leading historians, legal scholars, reli-
gious scholars, theologians, religious organizations, and
individual religious leaders.
• Of the three Supreme Court justices who addressed the
merits of Newdow’s claims,6 one “conclude[d] that, as a
matter of our precedent, the Pledge policy is unconstitu-
tional.”7 Notably, that justice can hardly be dismissed—
as so many members of the media attempted to dismiss the
Ninth Circuit judges who had ruled in Newdow’s favor—
as an extreme liberal; it was none other than Clarence
Thomas, the conservative Republican who had been
appointed by Republican president George H. W. Bush!
Despite Justice Thomas’s expressed disagreement with the Court’s
pertinent Establishment Clause precedents, to his great credit, he carefully
examined these precedents and candidly concluded that their reasoning
rendered the challenged Pledge policy even more clearly unconstitutional
than other practices the Court had previously struck down, including
school-sponsored prayer at graduation ceremonies. As Justice Thomas
explained, in part:
A prayer at graduation is a one-time event, the graduating stu-
dents are almost (if not already) adults, and their parents are
usually present. By contrast, very young students, removed
from the protection of their parents, are exposed to the Pledge
each and every day.
Moreover, . . . although students may feel “peer pressure”
to attend their graduations, the pressure here is far less sub-
tle: Students are actually compelled (that is, by law . . .) to
attend school. . . .8