For anyone who's missed the news, Michael Newdow is nothing if not persistent: he's gotten Judge Lawrence K. Karlton of the Federal District to rule that the Pledge of Allegiance is unconstitutional. The case may have gotten around the standing problem that led to his challenge being dismissed by the Supreme Court last year. Elk Grove Unified School District v. Newdow, 542 U.S. 1 (2004). [1] Much of the legal argument has focused upon the district court's application of precedent. I submit without comment analysis by Howard Bashman and Eugene Volokh on whether the Ninth Circuit's ruling which was reversed for lack of standing in Elk Grove should apply to the district court. I'll leave that to more heads more skilled in the delicate art of precedent, and instead ask a slightly broader policy question: when it comes to "under God" and atheists, why should I care?

To be a little more serious (and a great deal less flippant, as I prefer), I'll confess to a bit of puzzlement as to why an atheist sincere in his beliefs would go to the extent of multiple court appeals on behalf of his daughter, all for the sake of the words "under God" in a pledge that all admit the daughter must only hear, not recite. What, precisely, is the harm he's avoidng?

The Ninth Circuit held that Newdow (on behalf of his daughter) had sustained an "injury in fact," but there it was using the legal term of art rather than giving an explanation. Newdow's injury was an interference in the right to direct the religious education of his child. See Newdow v. United States Congress, 292 F.3d 597, 602-603 (9th Cir. 2002). But injury as "violation of a right" is different from injury in the sense I'm considering, the actual negative consequence of the pledge being stated by a state actor in front of an atheist. Here I become less certain of the problem.

When it comes to church and state cases brought by the religious, in most cases the harm is fairly obvious. Take, for instance, Minersville School Dist. v. Gobitis, 310 U.S. 586 (1940), in which the father of two Jehovah's Witnesses objected to the flag salute before the words "under God" were even added. (He lost, but the Court came around to his opinion in West Virginia Board of Educ. v. Barnette, 319 U.S. 624 (1943).) In that case, forcing the children to recite the pledge meant a choice between receiving an education and what was in the eyes of the parent (and presumably the children) the commission of idolatry. Whatever one thinks of the outcome of the case, the choice between compulsion and consequence is clear.

Similarly, I'd understand someone of a differing religious faith--say, for instance, a polytheistic one--objecting to being forced to state that this is a nation under a single God, particularly if their faith was one of a jealous set of deities who denied the existence of all others. (No such religion springs to mind, in fact, but it's not my area of expertise.) Giving the believer the most liberal benefit of the doubt--assuming that he is correct in what his deity or deities prescribe--then the fear of post-mortal consequence, be it damnation, particularly unpleasant circumstances for reincarnation, or even a less-than-ideal result in the afterlife seems worth challenging a law all the way to the Supreme Court.

That's not to say that atheism shouldn't be treated as a religious belief. In this I disagree with Jim Lindgren at Volokh, though we reach similar conclusions as to the Establishment Clause. The non-existence of God is no more a matter of empiricism than his existence. (At least, that's my belief as an agnostic.) Nevertheless, an atheist's belief in the nonexistence of God is of a different nature to the differing beliefs of those who believe in some intelligent creator. [2]

Hence the invocation of similar harm does not avail the atheist plaintiff. The atheist cannot object that he faces any compulsion greater than that of his own ego. Even giving the atheist every benefit of the doubt with respect to his belief, the harm is purely internal: an atheist mouthing the form of a religious ceremony is not blaspheming, there being no entity against which to transgress.

Which again brings me to question why Mr. Newdow keeps unfurling the banner of his Children's Crusade. I doubt his motive is of judicial significance, but given the political nature of the case it's relevant for a blogger to ask. We expect the beliefs of some Christian fundamentalists to be strong enough to withstand the teaching of evolution: does Newdow really suspect that his faith is so feeble that the invocation of two words in a pledge recited by rote can challenge them? Worth dragging that child through the publicity of a court case? Or perhaps Newdow does fear for his faith, given that he's not the custodial parent, but what about Jan and Pat Doe and Jan Roe, Mr. Newdow's new and anonymous fellow plaintiffs? They are custodians of their children, and presumably in near-daily contact. Do they really find their beliefs that threatened? Do they really see this as an issue risking... well, not the souls of their children, but some ineffable benefit in being theist free?

I have a hard time believing that, particularly when I consider the cost of a lawsuit and the ease of telling their children, "It doesn't mean anything. Just mumble." The conflict seems much more a stand for principle--separation of church and state for its own sake--than a desire to be free of painful oppression.

In any event, that's enough for now. There's another aspect of the case that interests me, and that's a comparison to international practices and my own experiences with "it doesn't mean anything, just mumble." But that will have to wait for tomorrow.

[1]: I'll fully admit that the citations in this piece are a mess. It's late at night and I'm without a Bluebook. Anyone who wants to make corrections is welcome to do so in the comments: never let it be said I'd deny my readers the fun of cite-checking. But this is a blog, not a law review, and I write it for fun: I'll fix citations tomorrow.

One interesting question does strike me, however. When I link to a case, I either use the most convenient--meaning usually the first hit in Google--source that looks reasonable, unless I want to support a given site. (For instance, I think Oyez is cool, so it gets quite a few links above.) Does anyone know of a list of "authoritative" sources that law-bloggers use for links?

[2]: I am using "atheist" here in its strongest sense, the denial of any greater being or conscious creative force: for sake of simplicity, the non-religious or non-mystical. Obviously what I say here would apply differently to non-theistic belief systems, but they're mostly irrelevant to the discussion at hand. The District Court doesn't make it clear in its statement of facts, but there's no indication that the atheists in question are non-theists.