Tyranny of the Minority: Newdow’s Methods Threaten Far More than the Pledge of Allegiance

By Erin Murphy

The U.S. Court of Appeals for the 9th Circuit drew criticism from both ends of the spectrum last year when it ruled that the words "under God" in the Pledge of Allegiance are unconstitutional. Even Congress managed to unite on the issue, and most Americans anxiously anticipate an overruling next year when the case is decided by the Supreme Court. But more troubling than the possibility of the High Court declaring us a Godless nation is the legitimacy such a ruling would grant to the Rev. Dr. Michael Newdow, who brought the case.

Attorney, former emergency room doctor and founder of the atheist First Amendmist Church of True Science, Newdow has pledged to pursue his cause until every mention of religion is removed from every nook and cranny of government. Even this will not satisfy the ambitions of Newdow, though, who has also adopted a personal crusade to redefine family law to favor parents’ rights over children’s interests. As disturbing as Newdow’s goals may be, they are no match for the insult embodied in his idiosyncratic disregard for the culture, traditions and rights of his fellow citizens.

Throughout proceedings for custody of his daughter, Newdow maintained that her mother (his girlfriend at the time) date raped him on the camping trip during which the child was conceived — apparently she knew he didn’t love her but "forced" him to have sex with her anyway. Notwithstanding the obvious legal miscalculation Newdow demonstrated in thinking such a bizarre argument would help him gain custody, his conceit demonstrates his utter inability to think beyond himself.

Aside from denigrating his child and her mother, Newdow’s casual representation of date rape is an affront to those who have experienced the true meaning of the term. He is willing to take a dehumanizing and often violent crime that women fought for decades to legitimize and cavalierly affix it to his own inability to say no. But his incapacity to understand that law has implications beyond his own life allows him to conveniently ignore the harm that watering down date rape law would cause to those in society whom it truly secures.

Newdow demonstrates the same lack of respect in his crusade against the family court’s authority to declare custodial rights. He ardently asserts that he has always had full custody of his daughter merely by virtue of being her father; stirring, but unconvincing to a family law judge. Newdow’s answer? The family law system is not only unconstitutional, but also misguided in its overemphasis on the child’s best interests. It’s not about the child; it’s about his "constitutional right" to be with his child, regardless of the court’s and mother’s insistence that other arrangements are now in his daughter’s best interests. He doesn’t stop there. Family court is also somehow to blame for the deterioration of his relationship with the child’s mother (surely accusing her of date rape and noting "under protest" on all his child support checks played no part in that).

Newdow is unable to see the utility of the custody system since he advocates its destruction based on the very root of its existence: to protect children from that minority of parents who are incapable of placing their children’s interests before their own. True, Newdow may not be physically endangering his child; he undoubtedly believes he is not endangering her at all. But the system exists to protect against the dangers such self-centeredness poses, and his crusade to destroy that system is a threat to the children whom it exists to protect.

This is precisely why the judge’s refusal to grant Newdow fully equal custody rights gives so little pause, and further, why so many are disturbed by his use of his daughter to gain standing in his Pledge lawsuit. Newdow maintains that the suit has nothing to do with his daughter and that he wanted to keep her anonymous — though filing on her behalf (the only real way he could achieve standing) and repeatedly requesting that she witness his oral arguments suggest otherwise. Yet when those opposed to Newdow argue that his daughter is Christian and has no problem with the Pledge including God, Newdow accuses them of using her to further their own cause — something he admits outright to doing himself.

Newdow’s lawsuit has caused such turmoil because he represents the selfishness of those who constantly expect law to conform to their own needs. Protecting the rights of the minority is an important and legitimate aim in our legal system because minority rights are as important as — not more important than — majority rights. Newdow maintains that his daughter is harmed by hearing other children say "under God" every day, giving the impression that her father’s beliefs are outside the mainstream. We can remove God from every classroom, coin and courthouse in America and that will not change the fact that, in this society, Newdow’s views are outside the mainstream. Yet rather than face reality and take responsibility for explaining this to his daughter, Newdow turns to the law and demands that it hide this truth from her instead.

Newdow’s litigious bug seems to know no limits, especially where religion is concerned. Current lawsuits include efforts to ban congressional chaplains (paid or unpaid) and prayers at the presidential inauguration ceremony. Future targets include removal of the motto "In God We Trust" from our money and patriotic songs such as "God Bless America" from government property or government-sponsored events. On his atheist rap album "Establi-Rap," Newdow professes, "You know that it’s illegal from a governmental perch; If you need your religion get your booty into church." Thus, he sees no constitutional haven for a voter who considers belief in God an important quality for a leader to possess or, for that matter, the right of our nation’s leaders to seek God’s assistance in the duties they must perform. Apparently the threat posed to Newdow’s atheist sensitivities in the knowledge that our leaders believe in a higher power far outweighs whatever small comfort such knowledge may provide for the majority of the country.

Newdow’s crusade against religion begs the question whether his true aim is upholding the Constitution or rather redefining the Constitution according to Newdow. Can the Constitution sustain such an attack should Newdow succeed? After all, America’s very foundation rests upon our founding fathers’ belief that all men are "endowed by their Creator" with rights to life, liberty, and the pursuit of happiness. Once the "Creator" is out of the picture, examining our roots can’t help but leave Americans wondering what exactly we have left.

Erin Murphy is a student at Georgetown University Law Center and an intern at the Center for Individual Freedom.

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