Jewish World Review
http://www.jewishworldreview.com | (KRT) In the bar, at the dinner table or over coffee, they are the two topics most polite company tries to avoid.
But politics and religion now dominate discussion in many quarters of American life, fueled by election-year politics and aggressive lobbying by religious and secular groups. Increasingly, the debate has been over the interplay between the two: How far government can go to recognize or endorse religious belief.
On Wednesday, the Supreme Court jumps into the fray to answer a complex legal question over two simple words: Can public schools lead children in recitations of the Pledge of Allegiance, which declares fidelity to one nation, under God?
It's one of the biggest cases this term, plunging the justices into a contentious social struggle that could be a centerpiece of this year's presidential elections.
Gay marriage and Ten Commandments monuments won't be on the table when the justices debate the pledge Wednesday. But they form an important backdrop for the discussion and the justices' ruling could shape the future of those arguments.
"They could draw some bright line rules here about church and state separation, and that would help people think about some of the other issues more clearly," said Doug Laycock, a University of Texas law professor and First Amendment expert. "They are all related in some way, and they're definitely connected politically in people's minds. The court has not really set down clear rules about establishment-clause violations, and if they did, it could keep a lot of the litigation over these issues out of court."
For Michael Newdow, the California doctor who challenged the pledge on behalf of his school-age daughter, the case is clear. The First Amendment couldn't be plainer when it says government shall observe no establishment of religion, he said. He's backed by more than a dozen church-state separation activist groups and atheist organizations. The 9th U.S. Circuit Court of Appeals, widely viewed as the nation's most liberal, issued a stunning opinion in his favor last year.
But the Elk Grove school district in Sacramento, Calif., says there's nothing religious about the pledge, so it's OK to have children recite it. The words "under God" are a patriotic expression, the district argues. A broad coalition of religious groups, all 50 states and the federal government also defend the pledge with diverse and sometimes conflicting arguments: It's an explicit acknowledgment of the country's religious founding; it's a harmless ceremonial sop to religious foundations; the Constitution doesn't call for explicit church-state separation.
The inconsistencies in the argument for the pledge suggest to some scholars that Newdow has a strong case. Legally speaking, he probably does. While the court has been increasingly tolerant of more neutral associations between government and religion, it's ordered a backing away from explicit endorsements of religious belief in public life.
It's fine, for example, for government to give parents public money that they can choose to spend on religious education. But school-led graduation prayers are off-limits.
"If they hold against the pledge, it will change the whole dynamic of how government can acknowledge religious heritage," said Jay Sekulow, chief counsel to the American Center for Law and Justice, a nonprofit law firm devoted to religious and civil liberties. He's a frequent high-court advocate for religious interests. "It would call into question many traditions, like the national motto," which is "In God we trust."
Still, Sekulow and others said the justices seemed unlikely to make a bold statement for separation on this issue. This court isn't known for clear line drawing on most issues, and on high-profile social issues such as this, it tends to duck controversy. It also has an out available: Because of a custody battle over Newdow's daughter, his standing to bring the case has been challenged. The justices could rule against him without even reaching the issue of the pledge.
For Newdow, that would be the ultimate low. Strident but personable, he's looking forward to an intense back-and-forth with the justices, whom he sees as open to his arguments.
"They all know that the threshold for this stuff should be pretty low," Newdow said in Washington last week. "The pledge fails any principle of the establishment clause, especially in the context of a school."
Newdow, an atheist, said his point was to protect religious students as well as nonreligious ones. "Because if atheists were a majority, we wouldn't be able to impose our views on the religious minority, either," he said.
Newdow predicts a win in the Supreme Court, but on narrow grounds.
"I think they'll say you can't do this in schools, where people send their kids expecting not to encounter religious indoctrination," he said. The vote? He said it will be 8-0. Justice Antonin Scalia, who probably would have been one of Newdow's most aggressive questioners, will sit out the case because he gave a speech supporting the pledge last year.
Laycock said that whatever the court did, it wouldn't quash the rising popularity of arguments over church and state.
"Both sides have gotten more aggressive in the claims they stake," Laycock said. "The conservative religious movements are bigger and more powerful, and they're exercising that muscle in many different arenas. On the other side, those pushing for a more secular society are not nearly as visible, but are also growing and they're winning a lot of cases in courts. I don't see anyone backing down soon."
Derek Davis, who directs the J.M. Dawson Institute of Church-State Studies at Baylor University, agreed, but said the justices almost certainly would uphold the pledge.
"In America, we adhere to a close separation, but at the same time, we have lots of accommodations for what I would call civil religion," Davis said. "We have religious holidays that are national holidays. We put `In God we trust' on our money. The pledge is no different, and I think the court will see it that way."
Newdow said that whatever the court ruled, his case had brought needed attention to an important debate, and proved how valuable our system of government was.
"In America, any citizen can try to uphold the Constitution with nothing more than an idea," Newdow said. "You don't need a lawyer or anything, and you can get a hearing in the Supreme Court. What a country."
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