Sunday, January 23, 2005
Agent Provacateur
I sometimes wonder whether Michael Newdow is really a double agent working for some evangelical organization. Newdow, you may recall, is the gentleman whose efforts to remove the words "under God" from the Pledge of allegiance made it to the Supreme Court last year. The case was thrown out by the Court without a hearing on the merits due to a technicality. (The Court held that Newdow did not have standing to bring suit on behalf of his daughter because he is not the custodial parent. Newdow was victorious, however, in getting the Ninth Circuit Court of Appeals to declare "under God" unconstitutional.) The ever-resourceful Newdow has managed to join a new suit with plaintiffs whose standing is not in question.
Not content to pester the good people of the State of California, Newdow recently brought suit to prevent prayers during President Bush's recent inauguration. Not surprisingly, no federal court, including the Supreme Court, felt inclined to take Newdow up on his invitation to embroil them in a fight with the other two branches. Indeed, there was no chance that the inauguration suit was going to succeed. Federal courts are acutely aware that they rely on moral persuasion and the cooperation of the other branches to enact their pronouncements. Picking a fight with the Executive Branch, which most likely would have spilled into the Legislative Branch, over inaugural prayer is not a hill that federal judges care to die for.
Thus far, Newdow is 0-2 in his efforts to remove religion from the public square. What if, instead, Newdow had succeeded in getting the Supreme Court to accept both his suits? What if the Supreme Court had struck down both "under God" and prayers during the inauguration within the space of six months? The result, I contend, would have been general outrage and then a groundswell of support for some type of constitutional amendment--an amendment at the very least to keep "under God" in the Pledge. In addition, striking down the inaugural prayer would certainly have galvanized Congress into some type of action. I suspect that even those who are not particularly fervent in their support of religious issues would have gotten behind such efforts from the sheer audacity of such actions. In addition, the subject of religion would have been on everybody's lips on an almost daily basis.
Is this what Newdow really wants? I doubt it. However, based on what I suspect would be the results if he got his way, I am almost tempted to wish the man luck.
