Last Tuesday I was able to sit in on Michael's appearance before the 9th. Circuit Court of Appeals in San Francisco. He's suing Congress to have the phrase "under God" removed from the Pledge of Allegiance.
The phrase was added by Congress in 1954. Many people, including Michael, believe this violates the "establishment clause" of the constitution.
Here's how the "Merc" covered Newdow's appearance.
"Inside an ornate marble courtroom in San Francisco, one of the nation's most persistent atheists tried yet again Tuesday to persuade a federal appeals court to strike down the Pledge of Allegiance in public schools.
But based on an hour of legal sparring and occasional musings about the meaning of God in public life, it is a tossup as to whether the 9th U.S. Circuit Court of Appeals will take the same tack as five years ago, when it found the pledge in school unconstitutional because it contains the phrase "under God."
A three-judge panel appeared divided on the latest legal challenge to the pledge, mounted by Sacramento atheist Michael Newdow, who has been on a crusade to remove the morning ritual from classrooms because he argues it amounts to government-backed religion in public school. Newdow also argued a separate case Tuesday before the 9th Circuit in which he maintains the "In God We Trust" motto on U.S. money also violates the separation of church and state.
"This is not a case of people who believe in God vs. people who don't believe in God," Newdow told the judges, referring to the pledge challenge. "This is a case about treating people equally."
Newdow's return to the 9th Circuit is the latest twist in a legal saga that has struck a patriotic nerve across the country. In 2002, a divided 9th Circuit panel struck down the pledge, finding that the addition of the "under God" phrase crossed the legal line separating church and state. .
Newdow then resurrected his challenge, suing a Sacramento-area school district on behalf of an atheist family with a child in elementary school. Sacramento federal Judge Lawrence Karlton sided with him in 2005, relying on the reasoning of the 9th Circuit's 2002 ruling.
The Bush administration and the Rio Linda Union School District appealed that decision to the 9th Circuit, prompting Tuesday's proceedings. The case could provide the Supreme Court an opportunity to address the issue directly, settling a legal and political debate that has lingered since Congress added the "under God" language to the pledge in 1954 at the height of the war on communism.
Karlton's ruling has been put on hold while the appeal proceeds.
Justice Department lawyers and lawyers for the school district argue that Karlton erred by relying on a 9th Circuit ruling that had been overturned by the Supreme Court. They also insist that the pledge is a patriotic exercise, not government-endorsed religion.
"The pledge is more akin to the declaration and the national anthem than it is to the Lord's Prayer or the Ten Commandments," Gregory Katsas, a deputy assistant attorney general, told the judges.
Judge Stephen Reinhardt, the 9th Circuit's leading liberal and a member of the 2-1 majority that declared the pledge unconstitutional in 2002, appeared receptive again to Newdow's position. Reinhardt openly questioned how adding God to the pledge contributes to its patriotic message, noting that he recited the pledge as a child without that language.
"Why is this teaching patriotism?" the 76-year-old Reinhardt asked.
Judge Carlos Bea, meanwhile, peppered Newdow with tough questions suggesting he believes the pledge can be recited as is. Bea referred to the fact that the pledge is voluntary because the law forbids schools from forcing children to recite the pledge if it is against their beliefs.
"What's wrong with a child stepping outside the classroom and not participating in the pledge?" Bea said to Newdow.
The swing judge on the case appears to be Dorothy Nelson, a Carter appointee who sent conflicting signals on the issue. She appeared sympathetic to the argument that the pledge and its message are rooted in American history.
But she also pressed the school district's lawyer when he maintained that the pledge simply helps teach patriotism.
In addition to the pledge case, the three judges sent mixed signals on Newdow's argument that "In God We Trust" is government-backed religion. While the judges expressed some support for the theory, they also noted that there is direct legal precedent against Newdow, including a 1970 9th Circuit ruling rejecting the same claim.
There is no timetable on when the 9th Circuit will rule in the two cases. Both sides have indicated they will appeal if they lose."