The Rev. Barry Lynn, executive director of Americans United for Separation of Church and State, acknowledged last week that the deck was stacked against Newdow, that the court wasn't likely to consider his challenge important enough to warrant the controversy that a decision in his favor would cause. "But it is that important," said Lynn, whose group filed an amicus brief in the case. "It's a question of whether we have two classes of people who love their country: one who is the approved kind -- you believe in God and you love your country -- and everyone else, the people who love their country but don't want to take a religious oath every time they say so."

Lynn said Monday he was "disappointed," but he took some comfort from the fact that a majority of the justices decided the case on technical grounds and left the substantive question for another day. "This means that there will be other parents with custody lining up to bring the same kind of suit in California, hoping that it will be on the same trajectory as Michael's." Lynn said he was particularly encouraged by Justice Anthony Kennedy's silence. "The fact that Justice Kennedy did not write a decision in which he opined on the merits suggests that he's still open-minded," Lynn said, leaving open the possibility, at least, that five justices might ultimately agree with Newdow if they were forced to deal with the substance of his case.

Last week, Newdow seemed to find it inconceivable that the justices would avoid the constitutional issue his case presents -- that they wouldn't see, like him, that this is actually an "easy case" under the First Amendment. The Establishment Clause says Congress shall "make no law" respecting the establishment of religion. Under any test the Supreme Court has articulated, Newdow said, the inclusion of "under God" in the pledge and the requirement that teachers lead the pledge in classrooms amount to just such a law. Pounding on his kitchen table, his voice rising sharply, he said: "Two plus two equals four. I understand that a lot of people are going to keep going, 'Two plus two equals five.' But it's four! Look! We can count it out here."

Asked what would happen if he were to lose the case, Newdow grew quiet, like a Christian whose faith in God has suddenly been called into serious question. He looked off into the distance, and his fingers worried the edge of the kitchen table. He started a sentence then stopped. As he contemplated the possibility that eight justices might not see his truth, the guy with all the answers and opinions was suddenly inarticulate.

"If I lose this one, then there's no reason to bring another Establishment Clause case because I'll know that they're clearly ... I can't win ... this one is just so clear, you know?" He started to say something about his "faith," but he never finished the thought.

And then the doubt began to lift -- he could see it so clearly again -- and Newdow found his voice. "You know, we had a pledge for 62 years and it worked fine, and then they took these two words -- "under God" -- and they stuck them in there, and ... it violates every single test the Supreme Court has ever set out."

If the justices don't see that, it doesn't mean Newdow was wrong; it just means he'll have to wait. If he lost, Newdow said last week, he would just have to think of his case as another Plessy vs. Ferguson, the 1896 Supreme Court decision that allowed "separate but equal" facilities for African-Americans until 1954, when the Supreme Court decided Brown vs. Board of Education. "I still think I'll win eventually," Newdow said with a confidence that Homer Plessy probably never had. "It may be 50 years down the road, but I'll win eventually."

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