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When California atheist Michael Newdow rises tomorrow to tell the Supreme Court that the words “under God” don’t belong in the Pledge of Allegiance recited in public schools, he will truly stand alone. Most lawyers bring one or two colleagues to counsel’s table. But Newdow isn’t like most lawyers. As of last week, Newdow, a litigant taking the rare step of arguing his own case, planned to have no one with him as his quixotic and controversial battle culminates in his first oral argument before the Supreme Court. His solitary stance symbolizes his resistance to pleas that he let a Supreme Court veteran argue his case for him in Elk Grove Unified School District v. Newdow. “They’re stuck with me,” Newdow said last week. Arguing in favor of keeping the pledge as it is will be one of the country’s top appellate lawyers, Solicitor General Theodore Olson, as well as Terence Casidy of Porter Scott Weiberg & Delehant, who represents the Elk Grove District near Sacramento. Nearly 60 amicus curiae briefs have been filed in the case, and spectators will probably line up the night before to win seats at the argument. “It’s a ‘Mr. Smith Goes to Washington’ thing for him now,” said Newdow’s longtime friend Lawrence Marshall, professor at Northwestern University School of Law. “He wants to show that you can do this without being a former law clerk — or having one at your side.” But Newdow’s defiance does not mean that he has rejected help from those who support his views or want to spare him and the court the embarrassment of a poorly argued case. After rehearsing in a dozen moot courts and polishing his briefs with the behind-the-scenes help of a small brain trust of lawyers and academics including Marshall, Newdow by all accounts is ready and able to make his pro se case to the court. His self-taught crash course in Supreme Court advocacy, undertaken since the justices granted his motion to argue the case himself Dec. 1, has apparently paid off. “He has been tilting at everyone from the beginning. No one believed in him,” said Thomas Goldstein of Washington, D.C.’s Goldstein & Howe, who has advised Newdow periodically. “But everyone, the justices included, is going to be pleasantly surprised at how good he is. It’s nothing less than extraordinary. And he may win.” Victory is hardly assured, though Newdow confidently predicts he’ll win by unanimous consent. But along with increasing confidence in Newdow himself, supporters are also beginning to feel that if the court reaches the merits, victory is at least possible, and defeat, if it comes, may be narrow. “He can win on the narrow ground that the pledge is coercive in the school setting, and that is the case he plans to make,” said University of Southern California Law Center professor Erwin Chemerinsky, another Newdow adviser who had substantial input into Newdow’s brief. “Mike is a very smart guy.” The new mood is in sharp contrast to the dread that most church-state separationists felt when the court last October agreed to review the 9th U.S. Circuit Court of Appeals’ ruling in favor of Newdow. Newdow’s early comments and filings triggered much of the uneasiness with the court. Newdow challenged the pledge on behalf of his school-age daughter and because of a custody dispute with the girl’s mother, his legal standing remains a major issue that still could sidetrack the case. In interviews, Newdow rails against California’s family court system, and many potential allies feared he would use the pledge case as a platform to do battle with the mother, Sandra Banning. In addition, Newdow’s early motions to the high court came on letterhead describing himself as “Rev. Dr. Michael Newdow” of the “First Amendmist Church of True Science.” Then came the highly unorthodox request for Justice Antonin Scalia’s recusal in the case because of comments Scalia made in a speech that appeared to prejudge his position on the pledge. Newdow’s gamble paid off in October when Scalia — considered a near-certain opponent — agreed to bow out. Newdow’s prospects have looked brighter ever since. The eccentricities are gone from his briefs on the merits. His rage about his custody situation, while still burning, has been banked for the time being. In an interview last week, Newdow said he did not want to “lose time” from his half-hour oral argument on the standing issue, though he could not resist adding that “I am an unbelievably great dad” who deserves standing to sue on his daughter’s behalf. Newdow’s early coolness toward outside assistance changed drastically when the court granted Newdow’s request to argue pro se in December. “I’m wild about advice, counsel, ideas, arguments, criticism and whatever else makes me think things through as thoroughly as possible,” he said in an e-mail at the time. He followed through, sending early drafts of his briefs to a number of law professors and lawyers who had offered to help. “At first it was too long, and it was polemical in a way that might have offended the court. He is a militant atheist,” said Peter Irons, political science professor at University of California-San Diego, who commented on early drafts for Newdow and authored an amicus brief on behalf of historians and theologians who side with Newdow. “But the final brief is substantially improved over the early drafts.” Chemerinsky also chimed in with suggested changes. “Mike was tremendously receptive to suggestions, more so than most lawyers,” said Chemerinsky, who is moving to Duke University School of Law this summer. “He was as receptive and appreciative as could be.” Marshall, Newdow’s friend, also said Newdow accepted advice — to a point. “There’s a limit to how much you can help Mike. He’s a very free spirit, very strong-willed.” Marshall also guessed that Newdow “has spent more time focused on this case than anyone ever has before arguing a Supreme Court case.” Newdow’s final brief argues that by adding the words “under God” to the pledge in 1954, Congress converted it into a recitation that “violates every Establishment Clause test this court has enunciated.” Unlike other mentions of God on U.S. currency and elsewhere, Newdow states, “here, there is actual verbalization of the religious verbiage. Here, there is a promise. An oath.” Not all of Newdow’s efforts were successful. Last December, hedging his bets on the standing issue, he asked the court to let him add as parties to the case another family in his school district that objected to the pledge. He said similar motions had been accepted in school desegregation cases, when the original parties graduated. But the court rejected the idea in January. Newdow also asked a California judge to let his daughter — whose name has not been mentioned in court papers — to attend the oral arguments, but that, too, was turned down. “It’s absolutely criminal that she is being deprived of the opportunity to see this,” Newdow said last week. Meantime, Newdow embarked on a round of moot courts, mainly at California law schools. Hastings College of the Law professor Vikram Amar, who played the role of opposing counsel at a Boalt Hall School of Law moot court in February, said Newdow “did fine,” though he added, “He still needs to realize what an uphill battle he has.” For example, Amar said that to win, Newdow can’t just state that children are harmed by having to recite the pledge; he’ll have to cite studies on the point. The amicus brief by Americans United for Separation of Church and State mentions several studies indicating that young children think the pledge is a religious statement, but at the time of the moot court, Newdow seemed unfamiliar with the data. Newdow knows about the studies now, and last week he said he had committed to memory the text of a letter, also included in the Americans United brief, from President Bush to a group of Hawaiian Buddhists who wrote to Bush about the 9th Circuit ruling. The November 2002 letter from Bush states that when citizens recite the pledge, “we affirm our form of government, our belief in human dignity, our unity as a people, and our reliance on God.” Newdow plans to use the letter to counter Olson’s argument that reciting the pledge is not a religious exercise. But the factor that helped Newdow’s case most of all, analysts agree, is something that happened before the Supreme Court became involved. The 9th Circuit’s initial ruling in Newdow’s case in June 2002 struck down the pledge in general, but after the national outcry, it was modified the following March to cover the pledge only as it is recited in public schools. That, Newdow’s supporters said, makes it easier to position the pledge case in a long line of rulings that take a harder line on religious expressions in schools than in other settings. In Lee v. Weisman in 1992, Justice Anthony Kennedy’s 5-4 ruling said a prayer at a graduation ceremony could leave students feeling coerced — even though attendance at graduation is not mandatory. Pledge supporters counter that the pledge is not a prayer, and — as the court ruled in 1943 — is not mandatory. Olson asserts in his brief that instead, the pledge is an expression of “national unity, patriotism and an appreciation for the values that define the nation.” The government also relies in part on the controversial “ceremonial deism” argument — that reciting the pledge is a “ceremonial reference” that has become part of the “fabric of our society” and cannot be interpreted as a religious statement. That argument is countered in a brief by University of Texas School of Law professor Douglas Laycock on behalf of clergy in support of Newdow. “If the religious portion of the pledge is not intended as a serious affirmation of faith,” Laycock argues, “then every day, government asks millions of schoolchildren to take the name of the Lord in vain.” But Laycock also offers the court a narrow way out if it wants to strike down the 9th Circuit: A limited ruling that approves the pledge as it is — because it is not mandatory, because its religious content is only two words and because it was recited without legal challenge for 50 years. Another brief on Newdow’s side also offers the court a middle way out of the dilemma of the case. Laycock’s University of Texas colleague Lawrence Sager and Christopher Eisgruber, who teaches law and public affairs at Princeton University, urge the court to require that schools explicitly give students the option of reciting the pledge without the words “under God.” But some of Newdow’s supporters think these alternatives give up too easily on the possibility that Newdow can win. If Newdow, by hewing to the Lee v. Weisman line of cases, can keep Kennedy on his side, then he might well bring Justice Sandra Day O’Connor along and win, said Chemerinsky and others. Only two justices — Chief Justice William Rehnquist and Justice Clarence Thomas — are viewed as sure bets against Newdow. Without Scalia in the case, Olson and Casidy may have a hard time winning the votes of three more justices. Scalia’s recusal sharply altered the dynamics of the case in other ways. Not only was he a likely opponent of Newdow, but he is also a stickler on standing issues. To have him out of the court’s discussions improves Newdow’s chances immeasurably, said Irons. “It was a godsend,” said Irons, adding, “Maybe I shouldn’t put it that way.”

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