This column by ACRU Senior Legal Analyst Ken Klukowski was published March 10, 2011 on The Washington Examiner website.
Atheist activist Michael Newdow, a controversial lawyer who once received significant media attention, may have worn out his welcome at the U.S. Supreme Court this week.
Although many lawyers who argue before the Supreme Court only do so once, a select group of perhaps 20 elite lawyers repeatedly appear before the court. The court often welcomes cases offered by these top-shelf attorneys, knowing that the justices will read polished briefs and hear well-reasoned arguments, which assist the court in reaching the correct result.
Newdow’s name appears in petitions before the court so often that you might mistake him for one of these appellate powerhouses. Newdow is best known for convincing the U.S. Court of Appeals for the 9th Circuit that the Pledge of Allegiance is unconstitutional because it mentions “one nation under God.” This case became Newdow’s debut before the Supreme Court in 2004, where the court dismissed his case because he lacked standing.
Since then, Newdow has brought a series of lawsuits, trying to challenge every aspect of expressions of faith in public settings or events nationwide. If he loses in the lower courts, he appeals, until finally he petitions the Supreme Court to take the case.
This week, the court rejected Newdow’s latest gambit in his crusade to completely secularize society. It arose from the 9th Circuit’s decision in Newdow’s recent case arguing that it violates the Establishment Clause to print our national motto “In God We Trust” on U.S. currency.
This case, Newdow v. Lefevre, was argued before the 9th Circuit back in 2007, and was decided in March 2010 after an extraordinarily long wait. The appellate court noted that Newdow has now formed his own “church,” the First Amendmist Church of the True Science (“FACTS” for short). He argues that it violates the teaching of his “church” to use money bearing the national motto.
This proved too much even for the most liberal appeals court in America. The 9th Circuit had upheld the constitutionality of the national motto in 1970, where the court held, “It is quite obvious that the national motto … has nothing whatsoever to do with the establishment of religion. Its use is of a patriotic or ceremonial character and bears no true resemblance to a governmental sponsorship of a religious exercise.” Reasoning that the 1970 case had not been overruled during the intervening 40 years, the court dismissed Newdow’s case.
Newdow petitioned the Supreme Court to take the Lefevre case, and on March 7 the court rejected his request. For the time being, “In God We Trust” on our money is safe from the courts (though perhaps not from the other two branches of our government).
But this is not the last the court will hear from Newdow. For example, he filed a lawsuit shortly after the 2008 election seeking an order forbidding Chief Justice John Roberts from concluding Barack Obama’s presidential oath with, “so help me God.” The D.C. Circuit federal appeals court dismissed this case for lack of standing in 2010.
Once again, Newdow has petitioned the Supreme Court. And also this week, on March 9 the court extended the deadline another month for the Justice Department to oppose Newdow’s petition.
So the justices have dealt with Newdow twice in just one week. In a couple months, they’ll decide again in that next case, Newdow v. Roberts, whether to invite the unrelenting lawyer from California back into the courtroom.
He should hope they refuse him. Otherwise, some of the first words he’ll have to hear would be the court marshal’s proclamation: “God save the United States and this honorable court.”