Each day elementary school teachers in the Elk Grove Unified School District (School District) lead their classes in a group recitation of the Pledge of Allegiance. Respondent, Michael A. Newdow, is an atheist whose daughter participates in that daily exercise. Because the Pledge contains the words “under God,” he views the School District’s policy as a religious indoctrination of his child that violates the First Amendment.
-- ELK GROVE UNIFIED SCHOOL DISTRICT v. NEWDOW
I was proud to be an American when Dr. Newdow was able to -- a rarity that has occurred a few times over the years [once involving the murder of a spouse in Latin America] -- argue his own case in front of the Supreme Court. Self-argument is more prevalent in the lower courts -- one of the Ten Commandment cases was so argued, a replacement only coming when it reached the Supremes (combined, both were 0-3). These are two of the cases discussed in Peter Irons' most recent book, God On Trial: Dispatches from America's Religious Battlefields. The others being the other (2005) Ten Commandments case, one involving a cross in a veteran's memorial, prayer at public school football games (in particular, an election to choose the speaker) and the Intelligent Design case in Dover Pennsylvania.
Irons is known for making Supreme Court cases down to earth and personal, telling the stories of the litigants involved,* here providing a good format: start with some introduction over the general issue of the Establishment Clause (though each side in some fashion probably sees these cases as a free exercise matter, all were treated as EC cases), discuss the history of the five cases (two commandment cases discussed together), and then provide testimonials -- in their own words -- from representatives of each side. The obvious value of this is twofold at least: it makes for a better story/book and helps dispel some myths of who is involved in these cases. Thus, though the book is over three hundred pages [but each part quite manageable ... the testimonials about ten pages each], one would hope that it reached a wide audience.
The title of the book is a bit of a misnomer, "God" per se not really on trial, and "battlefields" sometimes somewhat harsh. True enough, in some cases in sadly real ways (including school harassment and harassing phone calls), some of these cases cause some serious dissension. This is so even if one side wants to make them much ado about nothing. And, religious debates continue to be very important, including politically. But, some perspective should be supplied. Likewise, the book clearly underlines that we are not talking only about atheists (though they were involved too) here. Several of those making EC claims are practicing Christians, who disagree with some on the other side that certain "vanilla" references to "God" (some quite flavorful) are perfectly fine.
The atheists are interesting as well. One of the lesser known cases concerns a big cross put in a veteran's memorial. An "atheist in a foxhole" found this offensive (underlining the complexity of such things, he didn't find creches really a problem, given their temporary nature). It's a bit hard to demonize a Vietnam veteran as some ACLU flunky. The case also underlined the limits of the courts -- repeatedly, a court determined the cross illegal (or some dodge used to avoid removing it ... to a nearby church! ... a suggestion by the vet himself, yet), but yet another strategy was used. Now, the federal government has gotten involved, taking possession of the land ... and, after fifteen years (and the death of the original litigant), the case continues. Ironically, one person who came late in the day to "save" the cross is in fact Jewish, supporting (misguidedly) some sort of local option ideal.**
See also, teacher led prayer in public school long after the 1960s cases that banned it. This by the way suggests the tip of the iceberg nature of many of these cases. The prayer at football games case, involving what seems as a relatively benign matter of student choice, originated with clear religious favoritism ... including, harassment of Mitt Romney's people. Such harassment often occurs out of sight of the courts, of course, underlining that protection of our liberties ultimately is up to local communities. OTOH, not all of the cases was as personal -- the Kentucky Ten Commandments case actually involved members of the same family, the original display placed upon request without much thought given.
Ultimately, how important are these cases? Intelligent design does not belong in science classes ... it favors a particular faith and corrupts the principles of the class as well. Various religions have some strange "history" that can be used as well. Favoring a certain religion when setting up memorials is also a bad idea; we are not talking individual graves here, but a cross for everyone. After all, even Justice Kennedy -- who sees nothing wrong with most government sponsored religious symbols -- thought a cross permanently fixed on a governmental building is problematic. And, mixing church and state in public school continues to be a problem in various cases, which even those who might accept student prayers at football games will admit if they were honest.
The other cases are important as well, if somewhat less so in some respects. The Supreme Court reminds that "national flag is to serve as a symbol of our country" and "the Pledge of Allegiance evolved as a common public acknowledgement of the ideals that our flag symbolizes." If so, if it is used in a way that disfavors certain (dis)believers, it's problematic. A problem that is expressed in other ways as well. Furthermore, even if you recognize the "historical fact" of "nature's God," and the Pledge is more active than just some recognition of history, it is quite a different matter to pressure schoolchildren to reaffirm it via what amounts to a test oath. And, even the somewhat less offensive Kentucky Ten Commandments display (struck down on "purpose" grounds, a later similar display without such a background was upheld by a lower court) was defended on specious grounds that it was representative of our legal history. A particularly sectarian one at that.
Such is my .02. Overall, the stories are fascinating. A homeless lawyer? A doctor/lawyer, an atheist who has the luck to have a child with an evangelistic Christian? And, a whole bunch of other characters generally from "red" America (though Austin is a bit of blue in a sea of red), that all seem like down to earth people, including small town folk you would never think of seeing in the spotlight. You could not make this stuff up. Irons can lay it on a bit too thick (if you read his stuff, you might know what I mean) sometimes, but these people definitely have life stories that would make good fiction. The way Irons gives a feel of "We the People" particularly makes this a worthwhile read.
The media, not always best at reporting legal stories, can learn something. There is a lot of unmined potential there.
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* This was seen in his past books, including one comparing the views of Brennan and Rehnquist, the former known for being concerned with the stories of the litigants ... well, at least, those on the side he supports. The bias, surely not limited to him, was clear; thus, the format of this book is particularly useful. The fact that Irons was involved in a couple of the cases himself, one as a litigator (calls to his house led him to step aside) and the other assisting on briefs underlines he too has a dog in the fight. But, including in conclusionary remarks that opposes extremes, Irons comes off as fair.
Irons also brought the Supreme Court to the people in a more controversial way, releasing edited versions of audio before they were more broadly available online (Oyez and C-SPAN in a few cases), much to the ire of some of the judges. His May It Please The Court series is a gem for high school students and the like, though it unfortunately went out with a bit too little editing. Two glaring pieces of evidence included an audio edit instruction left on one of the tapes and noting a certain justice asked a question, even though it was before he joined the Court. As a lawyer and law professor, this really was in bad form.
** In his remarks, there seems to be some confusion between a cross to represent all vets in a memorial, and the ability to put a religious symbol on any sort of publicly owned land. Simply not the same thing. There is also the idea that some sort of "Jesus" prayer is a problem, but not a reference to "God" ... though in this case the symbol is clearly Christian.
It's a cross, after all! In fact, some people seem not to have read the gospels. Jesus not only told us to pray in private, but opposed oaths -- just say "yes" or "no." But, suggesting "so help me God" is a bad idea will liable to get you in trouble, though it is true that it has become optional is many jurisdictions.