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Ever since he first decided to challenge the wording of the Pledge of Allegiance, Michael Newdow says, he has tried without success to gain support from major civil liberties organizations. “The ACLU said, ‘Drop the case,’” Newdow asserts, referring to the American Civil Liberties Union, which he first contacted during his unsuccessful Florida litigation in 1999. As for Americans United for Separation of Church and State, Newdow says, “They wouldn’t read my brief, but they said, ‘More power to you.’” More recently, he says, Americans United — which has been a leading player in Supreme Court church-state litigation for decades — tried to take over management of the case from him. “They’re afraid of me,” Newdow says, although he also acknowledges that he has so far turned down some other offers of assistance from law professors and Supreme Court advocates. Top leaders of both organizations deny Newdow’s allegations and say they are eager to embrace his position and the 2002 ruling by the 9th U.S. Circuit Court of Appeals that supported him. But both indicated in their own way they might have preferred that the issue not be joined at this time, and before this Supreme Court. “He is clearly correct on the issue,” says Steven Shapiro, the ACLU’s legal director. But Shapiro also expresses some concern about timing. “There could be enormous political consequences from this being argued and decided in the midst of the presidential campaign,” he says. “It raises the stakes tremendously.” Shapiro says he cannot account for every contact between the ACLU or its affiliates and Newdow, but is disappointed that Newdow feels slighted. Especially now that the case has been granted, the ACLU plans to file an amicus brief on Newdow’s behalf and work with other groups that support him. Any previous miscommunications are “water under the bridge,” Shapiro says. “Here we are.” Barry Lynn, executive director of Americans United, also says his organization is foursquare behind Newdow’s effort. Because of the group’s “limited resources,” Lynn says, Americans United never challenged the Pledge itself. Lynn notes that as soon as the 9th Circuit ruled in Newdow’s favor last year, Americans United issued a supportive statement “before the camera crews arrived at his front door.” Lynn says he is in active discussions with other organizations about amicus curiae strategy. In late September, however, Americans United sent a letter to the Supreme Court that Newdow says was unhelpful to his contention that he has standing. In the letter, written by Covington & Burling partner David Remes, the organization suggested that the Court “defer consideration” of the Pledge case until Newdow’s custody status is clarified. Asked if Newdow should argue the case himself, Lynn pauses at length. “It all depends on the alternatives,” he says finally. “I want there to be a vigorous recitation and debate on the issues.” Lynn adds, “It’s hard to find many success stories when people argue their own cases.” The ACLU’s Shapiro sounded less worried about Newdow’s arguing on his own behalf. “He won at the 9th Circuit, and he got [Antonin] Scalia to recuse. That’s not a bad record.” Meanwhile, on the other side of the case, supporters of the current “under God” wording of the Pledge are mobilizing forces as well. The Christian Coalition of America, the American Center for Law and Justice, and Grassfire.net have launched petition drives to make it clear to the Court that the public supports the Pledge — and opposes the “judicial activism” the 9th Circuit ruling represents. “For too long, the American people have given the federal courts a free pass,” says Steve Elliott, president of Grassfire.net, an online organization aimed at mobilizing conservatives nationwide. Elliott delivered pro-Pledge petitions with more than 500,000 signatures to the Supreme Court in late October. The group plans to file an unusual amicus brief in the case that will be signed by those 500,000 petitioners.

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