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UC Berkeley In Brief

Campus offers trove of resources that explore issues in Pledge of Allegiance case before Supreme Court

24 March 2004

– On Wednesday, March 24, the United States Supreme Court heard arguments in Elk Grove Unified School District v. Newdow, commonly known as the Pledge of Allegiance case. Michael Newdow, a California parent and lawyer, represented himself in the hearing. As an atheist, Newdow does not want his 9-year-old daughter forced to recite the phrase "under God" in the Pledge of Allegiance at her school. Congress added those two words during the height of the Cold War in 1954, intending to distinguish the pledge from similar but "godless" communist oaths.

 Michael Newdow
Michael Newdow arguing his case in a moot-court proceeding held at Boalt Hall. (Photo courtesy of American Constitution Society)

The San Francisco-based 9th U.S. Circuit Court of Appeals ruled in June 2002 that requiring the pledge to be recited as written is unconstitutional because the words "under God" are tantamount to an endorsement of religion and thus violate the constitutional separation of church and state.

Complicating the argument is whether Newdow, who did not marry his daughter's mother and did not have custody of the girl at the time, has legal standing to sue on her behalf.

These issues were debated at UC Berkeley's Boalt Hall School of Law and elsewhere on campus in the months leading up to the March 24 hearing. Boalt's American Constitution Society (ACS) held a moot court hearing on February 19 in which Newdow argued his case against Hastings College of Law professor Vikram Amar, representing Elk Grove. A webcast of Newdow and Amar's oral arguments is online. A majority of the distinguished panel of judges agreed with Newdow's interpretation of the law and their discussion of the case also can be viewed via webcast. The Sacramento Bee covered the dry run of the case.

Jesse Choper and Robert Berdahl
Boalt Hall law professor Jesse Choper discusses the Pledge of Allegiance case with Chancellor Robert M. Berdahl on Bear in Mind. (BAP photo)

The ACS's website has collected briefs and background materials relating to the case for public review.

Jesse H. Choper, Boalt Hall's Earl Warren Professor of Public Law and a constitutional law expert who served as one of the February moot court judges, has given numerous interviews about the case. He has also written an essay discussing the legal merits of the case — "One Nation Under God: Is the Pledge of Allegiance Unconstitutional?" — for the latest issue of Boalt Hall's Transcript magazine. This essay has just been made available on the NewsCenter.

In November of last year, Choper talked to UC Berkeley Chancellor Robert M. Berdahl about how the phrase "under God" came to be inserted in the Pledge and what angles the Supreme Court will be considering in the case. (Listen to the interview as a RealPlayer audio file, available on the website of Berdahl's Bear in Mind show.)


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