The Newdow Ruling

Dahlia Lithwick has an article over at Slate defending the Newdow ruling. Initially, I found her argument really persuasive. But the more I consider it, the more I'm inclined to disagree.

Obviously, Newdow's standing on behalf of his daughter is obliterated by Banning's counter-motion. But it seems that his own claim still remains incredibly strong, especially with regards to the Establishment Clause.

Lithwick writes:

In his concurring opinion, Chief Justice William H. Rehnquist disagrees with the majority, finding that Newdow has the unfettered right to expose his daughter to his religious views. Of course he does. But Newdow cannot make ultimate decisions on yes/no matters, such as whether she can recite the pledge. For Banning's veto to mean anything, it must mean that she makes those calls.

This misrepresents both Rehnquist's argument and the strength of Newdow's claim. Newdow's claim to personal standing is that the state is lending it's imprimatur to the beliefs of Banning by coercing his daughter into a daily vow of fidelity to a God he does not acknowledge.

The Court does not take issue with the fact that, under California law, respondent retains a right to influence his daughter's religious upbringing and to expose her to his views. But it relies on Banning's view of the merits of this case to diminish respondent's interest, stating that the respondent "wishes to forestall his daughter's exposure to religious ideas that her mother, who wields a form of veto power, endorses, and to use his parental status to challenge the influences to which his daughter may be exposed in school when he and Banning disagree." Ante, at 13. As alleged by respondent and as recognized by the Court of Appeals, respondent wishes to enjoin the School District from endorsing a form of religion inconsistent with his own views because he has a right to expose his daughter to those views without the State's placing its imprimatur on a particular religion. - Rehnquist

It would seem that Rehnquist rightly argues that Newdow has standing to challenge, not on the grounds of an unfettered right to influence his daughter, but on the grounds to ask neutrality from our Nation on a contested question of values between himself and his wife in the upbringing of their daughter.

Rehnquist's subsequent defense of the pledge, in which he cites the religious testaments of several presidents (as though the words "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States" didn't render such displays purely private in character) seems untroubled by a question that really does and should bother American atheists.

We are One Nation. Not all of us are Under God. Woodrow Wilson and Dwight Eisenhower can declare their belief in God and their conviction that God guides this glorious nation, as cited by Rehnquist, without ever harming the interests of those of us who are Americans and also atheists. But the ideology embodied in and articulated by the Pledge explicitly declares that those who do not recognize God are, in a real and powerful sense, not properly Americans. This was neither an accident unrelated to intent ("The amendment's sponsor, Representative Rabaut, said its purpose was to contrast this country's belief in God with the Soviet Union's embrace of atheism"), nor in keeping with the historical tradition of this country - which has always acknowledged that we can stand united in love and loyalty for our country whatever our disagreements on matters of conscience and principle.

Surely Newdow has a right to ask his nation to stop telling his daughter that he is not a part of it? To ask as a patriotic American that the nation not persuade his daughter that the glue of patriotism only binds the religiously faithful to the glories of our nation? Whether Rehnquist is right and the clause of the pledge is harmless or not, the material harm to Newdow is not implicated by Banning's right to sanction her daughter's participation in the pledge, but in Newdow's right to request the state to refrain from characterizing the patriotism of Americans as a function of their religious faith.