Mr. Newdow Goes to Washington

By Zachary Block '99 / May / June 2004
June 15th, 2007
On March 18, just six days prior to his scheduled appearance before the U.S. Supreme Court, Michael Newdow crept through heavy morning traffic outside Washington, D.C. Newdow, an emergency-room physician who’d attended law school but never practiced law, was about to make headlines as the atheist challenging the constitutionality of the Pledge of Allegiance, in the process dazzling veteran court reporters and triggering an unusual judicial discussion about the meaning of the word god.

Newdow had already won his case in San Francisco’s Ninth Circuit Court of Appeals, and in the twenty-one months since that victory, fealty to the Pledge had become a litmus test for politicians to prove their patriotism. The Bush administration had immediately mounted an appeal, and the Supreme Court had not only agreed to hear it; it granted Newdow a special waiver to represent himself before the justices. A gadfly who’d first set out to challenge the words “In God We Trust” on U.S. currency, he was now the central figure in a noisy battle in the culture wars.

Newdow hardly fit the image of a man about to litigate before the nation’s most august court. Sitting in the driver’s seat of my rented white Dodge Neon, Newdow wore battered LA Gear sneakers, a white Chicago Tribune T-shirt, and beige cargo pants. At various times in our nearly two-hour ride, Newdow seemed wired, subdued, angry, and playful. He even broke into song at one point. It was far from the demeanor of a lawyer used to parsing his every word. Lacking paralegals, or any staff at all for that matter, he thrust a stack of white paper in my direction and asked me to quiz him on the case-law citations, quotes, and statistics printed on the sheets. When he answered correctly, I kept the paper on my lap. When he missed, he collected the paper. In no time his pile dwarfed mine.

“All of this stuff I should have so cold,” he said, snapping his fingers. “My plan was to start last summer. I’ve had no time to learn this stuff because of this stupid family-law stuff.” The reference was to the other obsession in his life: his bitter struggle for custody of his nine-year-old daughter. It was her recitation of the Pledge in her Sacramento, California, elementary school that is the basis of his constitutional challenge. Newdow argues that asking his child to recite the phrase “one nation under God” violates his parental right to bring her up according to his own religious beliefs. The girl’s mother disagreed, and the two were waging a separate war in another court over custody rights. Newdow’s attention to that fight was sapping the energy and focus he needed to prepare for the Supreme Court. “I’m so far behind,” he repeated. “I’m so far behind.”

Even without the distractions of the custody case, Newdow’s chances before the tradition-bound Supreme Court seemed bleak. A law degree was about the only standard credential he brought to the case. To save money on hotels while in Washington, he considered sleeping in an office offered to him by the Humanist Society, but he ended up staying in an aunt’s apartment. He had no team of associates billing eighty hours a week or even any eager law students to pull all-nighters on his behalf. Instead Newdow worked alone. He photocopied pictures of the Supreme Court justices and posted them, along with their names and religious affiliations, on a wall in the attic of his Sacramento home. He trained in nearly a dozen moot court sessions, delivering his argument to judges and law-school professors playing the roles of justices out to savage his presentation. At times, Newdow displayed little regard for the sartorial conventions of the courtroom, appearing at one of them, according to a report in the Atlanta Journal-Constitution, in shorts and no shoes. The week we met, he had three moots on his schedule—including ones at the University of Maryland and Georgetown law schools. Newdow had hoped to review videotapes of earlier sessions, but he’d forgotten them at home in California. Things were definitely slipping.

None of that dimmed Newdow’s confidence, however. Faced with a phalanx of powerful opponents that included the Bush administration, Congress, and the attorneys general of all fifty states, he had the undaunted cockiness of an idealist certain that principle was on his side. “I would expect them to feel intimidated,” he said, “because I have all the law on my side. This case is easy.”

ALTHOUGH RAISED in a nominally Jewish family, Newdow can’t remember ever believing in God. “I was born an atheist,” he says. His mother, Rosalyn Newdow, describes her middle son as “very logical and very exacting.” “He’s always done his own thing,” she says with pride. “He’s an unusual person.” The family moved from the Bronx to Teaneck, New Jersey, in 1960, when Michael was seven, and the linguistic legacy of that move can be heard every time he speaks. He played soccer in high school and served on the library council. He performed in several musicals and starred as Harold Hill, the traveling con artist in The Music Man.

Newdow says he chose Brown because someone told him it was a good school; he says he’d never set foot on the campus or even looked at a brochure before enrolling. His approach to medical school was similar. He’d always figured he’d be a doctor and went from College Hill straight to UCLA. He graduated in 1978 and completed a one-year internship at Kings County Medical Center in Brooklyn, but he did not serve a residency. He practiced emergency medicine for six years. Then, hoping to reform the medical system by taking on doctors who overprescribe medication, order wasteful tests, and perform unneeded procedures, he enrolled in University of Michigan Law School, where he earned his JD in 1988. He paid his way through law school by moonlighting in local emergency rooms, but he never worked as an attorney; he says he gave up the idea of taking on the medical establishment after failing to secure a job with a law firm or advocacy group. He didn’t take the bar exam until February 2002. He says he passed despite not studying for the multi-day test in the month preceding it.

For years during the summer, Newdow staffed and lived at a walk-in emergency clinic on the Jersey shore. His plan was to work obscenely long hours for twenty years and then retire, and he says he had accumulated $3 million toward that goal after working in “hundreds” of emergency rooms. “I probably worked in more emergency rooms, conceivably, than anybody else, ever,” he says. Newdow still holds medical licenses in California, Florida, New Jersey, Michigan, North Carolina, and Virginia.

UCLA associate professor Greg Moran, the director of research at Olive-View UCLA Medical Center—where Newdow served a two-year fellowship in the mid-1990s and has worked on and off since—says Newdow is an “excellent doctor” who constantly pushes the residents he supervises to justify their approach to treatment. “He would say, ‘Okay, why are you ordering this test? What are you going to do with this answer?’ ” Moran explains. “He really made them think critically about how they were approaching treatment.” Moran says Newdow is also a popular lecturer among more experienced doctors attending training sessions at the hospital.

For the past three years, though, the Pledge challenge and his custody case have consumed Newdow’s life, so he has largely lived off his savings. When he first challenged the Pledge in 1998 in Florida, where he maintained his legal residence, he says he had no idea how to file a lawsuit or what goes into a complaint. Civil procedure was foreign territory. After the suit was thrown out on jurisdictional grounds, Newdow refiled it in California. He based the complaint on an earlier constitutional challenge by another atheist attorney. “Any American citizen can do this,” Newdow says of his courtroom activism. “All you need is a computer and a printer and you can uphold the Constitution. You don’t need a law firm. You don’t need any kind of group. You don’t need anything. You don’t need much money. This whole thing cost me a couple thousand dollars. What a system.”

The Pledge case is just a start; Newdow’s campaign to untangle God and government has led him to sue to eliminate clergy-led prayer at presidential inaugurals, as well as the jobs of the congressional chaplains. (He once applied for the position, but believes his application wasn’t seriously considered because of his atheism.) He also has started a grassroots effort to replace the male and female pronouns, he and she, with the gender neutral, ree. Such a change would make English more efficient and promote gender equity, he says.

Newdow orders his world around logic and rational thought. “Show me the study—that’s my answer to everything,” he says. Newdow’s religion is science. Literally: in 1997 he founded the First Amendment Church of True Science (FACTS). The church is based on “reason rather than mythology” and has three central “suggestions”: question, be honest, and do what’s right. One reason family law so exasperates him is that it’s an inherently messy system that often relies on intuition, not statistics.

Newdow claims to have founded his first “religious institution” with some friends while he was in junior high school. The group even invented a deity named Harvey in what was essentially a mocking response to established religions. In medical school Newdow became ordained as a minister of the Universal Life Church, a process that amounted to sending a postcard to the church’s Modesto, California, headquarters. Newdow is serious about his clergy position; he even files his lawsuits as “the Rev. Dr. Michael Newdow.” Asked about God, however, he laughs. “Look around,” he says. “Do you see any God here? How do you decide that there’s no flying dinosaur in this room? It’s not here. It doesn’t matter how many people tell me there’s a flying dinosaur in this room.”

For Newdow, the problem is not God’s absence but God’s inescapable presence. He decided to challenge “In God We Trust” after examining the cash from his pocket while he stood in line to buy soap at an Ann Arbor, Michigan, supermarket. “It just hit me,” he says. “ ‘In God We Trust,’ I don’t believe that.” Newdow hasn’t given up on removing the phrase from U.S. currency, but his focus shifted to the Pledge suit when he realized it would hold up better in court.

Newdow knew the word god did not appear in the original Pledge of Allegiance, written in 1892 by a Baptist minister and socialist named Francis Bellamy. Congress added the phrase “under God” in 1954 after a campaign by the Knights of Columbus, a Catholic group, to draw a Cold War contrast with Soviet godlessness. “We are reaffirming the transcendence of religious faith in America’s heritage and future,” President Eisenhower declared at the time. “In this way we shall constantly strengthen those spiritual weapons which forever will be our country’s most powerful resource in peace and war.”

Putting God in the Pledge, Newdow argues, amounts to a government endorsement of religion, a violation of the First Amendment. When a teacher leads his daughter in the Pledge, he says, she’s being told that atheists, including her father, are wrong. Doing so, he believes, infringes on his constitutional right as a parent to pass on his beliefs to his daughter without government interference.

Newdow’s lawsuit seemed an eccentric nuisance—until he won. Writing for the 2–1 majority on the California court, Judge Alfred T. Goodwin, a Nixon appointee, echoed Newdow’s argument: “A profession that we are a nation ‘under God’ is identical … to a profession that we are a nation ‘under Jesus,’ a nation ‘under Vishnu,’ a nation ‘under Zeus,’ or a nation ‘under no god,’ because none of these professions can be neutral with respect to religion.”

The public reaction was immediate, loud, and overwhelmingly negative. President Bush, at a summit meeting in Canada, called the ruling “ridiculous.” “A declaration of God in the Pledge of Allegiance doesn’t violate rights,” he said. “As a matter of fact, it’s a confirmation of the fact that we received our rights from God, as proclaimed in our Declaration of Independence.” In Washington, the Senate voted 99–0 to support the Pledge in its current form, while a cadre of congressmen convened on the Capitol steps to recite the Pledge and sing “God Bless America.” Meanwhile, incensed Pledge supporters left hours of angry messages and a few threats on the answering machine Newdow had installed in anticipation of his victory. He wove some of the more colorful epithets into a song, “My God Is in My Soul,” one of eleven political folk tunes he performs on a CD he produced, which also pokes fun at his critics, including West Virginia Senator Robert Byrd and Fox News’s Bill O’Reilly. Newdow sings, plays guitar, and even raps on the disc, Liberty and Justice for All, which sells on his Web site, for $17.89, an amount that refers to the year the Constitution was ratified.

The Ninth Circuit ruling rescued Newdow from the anonymous fate of other lonely crusaders swimming against the mainstream. He was featured in all the major U.S. newspapers and did the rounds of cable talk shows. He was invited to speak at Duke and Harvard. He also took his fight into hostile territory, appearing at the conservative Federalist Society and debating a Connecticut-based pastor on a broadcast beamed to more than 1,000 churches around the country.

To the surprise of many seasoned court observers, Newdow next persuaded conservative Supreme Court Justice Antonin Scalia to recuse himself from the Pledge case after he criticized the Ninth Circuit ruling at a January 2003 event celebrating Religious Freedom Day in Fredericksburg, Virginia. The move opened the possibility of a 4–4 split in the Supreme Court—a result that would uphold the Ninth Circuit’s ruling in the nine western states it covers.

Critics weren’t the only ones to voice doubt about Newdow’s fibre. Even some supporters wondered about his competency in the big leagues, urging him to step aside and let an experienced litigator argue the case before the eight justices. The emotional Newdow, they reasoned, was too distracted by the demands of his child-custody case and ran the “risk of going off on tangents and making points the court won’t consider relevant,” as one lawyer who advised Newdow told the Los Angeles Times. But having shepherded the Pledge case to the Supreme Court’s doorstep, Newdow wasn’t about to let another lawyer steal the spotlight. He felt it was crucial for an atheist to argue the suit. Only an atheist, he said, would feel the sting of the declaration “God save the United States and this honorable court” that opens each Supreme Court session.

WHATEVER MERIT Newdow’s legal arguments about the Pledge may have, his crusade could fail if the Supreme Court determines that his contested custody over his daughter makes him ineligible to speak on her behalf. That’s the wish of Sandra Banning, the girl’s mother, and the relationship between Banning and Newdow is yet another bizarre element of this story. The two met when Newdow was in medical school. Newdow says they had a brief relationship and were mostly out of touch for a decade. They revived their friendship when Newdow began working in California emergency rooms. Although they never married, he says they were “best friends” until they became adversaries in family court. Newdow claimed in court that their baby was conceived after Banning raped him while they were camping in Yosemite in 1993, an accusation described as “disingenuous” by the presiding judge in his ruling filed in January 2004. “She didn’t trick me,” Newdow says. “I specifically said ‘no’ multiple times before and during [sex]. Was I forced into being a father? Yeah.” Banning did not return calls placed through her lawyer for comment.

The National Center for Men’s Voluntary Fatherhood Project, which claims to support “legalizing choice for men,” lists Newdow on its Web site as “willing to litigate our cause in federal court.” Newdow denies any formal association with the group, but he says he often hears from men who claim to be forced fathers. “They call all the time,” he says. “I give them whatever advice I can give them, letting them know I don’t have the skills to help them navigate the system.”

Although Newdow did not at first welcome the prospect of parenting, he says it’s now the most important job he has. He was living in Florida at the time of his daughter’s birth and moved to California to be closer to her. “You can talk to anyone that’s ever seen me with my kid,” he says. “I’m a great dad, a phenomenal dad.” He declined to provide the names of friends or other parents who could speak to his relationship with his daughter. Newdow won’t talk much about the young girl, except to refer to her reverentially as “the greatest child in the world. She really is a super kid, although she did get two B’s on her report card last week.” He says she’s aware of the case and even quizzed him on Supreme Court citations during a recent trip to Florida. “She thinks her dad’s famous,” he says. Banning addressed Newdow’s relationship with their daughter in a 2003 interview with the Washington Post: “I do believe he loves his daughter, as much as Michael Newdow can love anyone. And she loves him. But she’s a great vehicle for him to accomplish his other things.” In court filings, Banning has been identified as a “committed Christian” and said that her daughter has no problem reciting the Pledge.

In February 2002, Banning was awarded sole legal custody of the girl. Newdow, who retained visitation rights, challenged the decision. Last year, he was awarded limited joint custody, but Banning retained the right to make final decisions about rearing their daughter. Newdow was also stuck with Banning’s $309,000 legal tab. The situation so angers him that at one point in our conversation he referred to the family court as “that goddamn system,” before quickly apologizing for using the word god. In any case, Newdow has promised to turn his attention to reforming family law after the Pledge challenge wraps up. “I will change that system before I’m dead, even if I go bankrupt doing it,” he says.

Newdow’s single-minded pursuit of what he believes is right often makes him unaware of such social niceties as picking the right time and place to start an argument. After watching University of Maryland law students compete in a moot court competition based on his Pledge case, for example, Newdow approached one of the judges, a family-court magistrate from Baltimore, and began arguing the merits of the family-law system with her. “Do you have any evidence that you do anything to help people?” he demanded, clearly agitating the judge.

That he is often correct only makes Newdow seem more annoying. The trait has left a trail of irritated colleagues in hospital emergency rooms. “Sometimes he does rub people the wrong way,” Moran says, “but when he does, he’s almost always right.” Similarly, columnist William Safire wrote in the New York Times, “The only thing this time-wasting pest Newdow has going for him is that he’s right.”

Newdow’s strict rationalism can end up hurting him as well. It may have cost him true shared custody of his daughter, which, he says, he’d give up the Pledge case to obtain. More directly, the custody dispute could end up short-circuiting the Pledge challenge, if the justices rule that as a part-time father Newdow lacked the “standing” to bring the case in the first place.

ON THE MORNING of March 24, hundreds of people lined up outside the Supreme Court to get a seat in the chambers. Supporters of the current Pledge squared off with atheists and other opponents in megaphone-powered shouting matches. Newdow arrived alone, carrying a maroon backpack. He wore a gray wool sport coat and charcoal slacks, the same outfit he wore the previous week during his three mock trials, although he had exchanged his black tie for a gray one.

Once inside the court, Newdow largely held his own under machine-gun questioning from the justices. He spent the beginning part of his argument defending his right to bring the lawsuit in the first place. “When I see the flag and I think of pledging allegiance, I—it’s like I’m getting slapped in the face every time,” Newdow told the Court. “I want to be able to tell my child that I have a very valid religious belief system.” One exchange, with Chief Justice William Rehnquist, even drew applause from the gallery. The outburst momentarily stunned the normally unflappable Rehnquist, who threatened to banish spectators if there were further disruptions.

Representing the California school district where Newdow’s daughter lives, attorney Terrence Cassidy attacked Newdow’s power to pursue the lawsuit. “The ultimate decision-making authority is with the mother in this case,” he argued.

Solicitor General Theodore Olson, meanwhile, told the justices that the Pledge of Allegiance reflects “the religious basis of the framers of the Constitution.” He described the oath as a “ceremonial, patriotic exercise”—not a statement of faith. “It is not like a prayer,” he argued. “It is not a supplication. It’s not an invocation.”

Reporters covering the hearing seemed intoxicated by Newdow’s performance, which was described as “virtuoso” by National Public Radio’s Supreme Court correspondent, Nina Totenberg. In the New York Times, Linda Greenhouse characterized his argument as spellbinding: “Dr. Newdow, fifty, often spoke very rapidly but never appeared to lose his footing during the thirty minutes the court gave him,” she wrote. “He managed a trick that far more experienced lawyers rarely accomplish: to bring the argument to a symmetrical and seemingly unhurried ending just as the red light comes on.” Even fellow alumnus Kenneth Starr ’69 AM, Banning’s lawyer, gave Newdow high marks. “He was superb,” Starr told a swarm of reporters on the court steps.

The day, however, didn’t bring only positive reviews for Newdow. Three hours after the Supreme Court adjourned for the day, a federal judge dismissed Newdow’s suit to permanently depose the Senate and House chaplains.

None of this, of course, will likely have any influence on the justices’ final ruling on the Pledge. The decision is expected before July, not long after Newdow’s daughter turns ten.

Zachary Block is the BAM’s staff writer.
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