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Jewish World Review April 30, 2004 / 9 Iyar, 5764 Too high a Wall By Jonathan Tobin Supreme Court's ruling on the Pledge avoids a separationist meltdown http://www.jewishworldreview.com | Anyone who believes that the rituals that begin school are meaningful ways to instill patriotism is probably too old to actually remember going to school. Indeed, most youngsters have trouble actually saying the words of the Pledge of Allegiance correctly, and have little idea of what they mean. Thus, all the carrying on about the content of the pledge recited each morning by millions of schoolchildren is something of a theoretical exercise. But it is one that could have a tremendous impact on the future of the U.S. Constitution and American politics. That's why the stakes were high when this week the U.S. Supreme Court overruled a lower court decision that said the inclusion of the words "under G-d" in the pledge was unconstitutional. In the case, Elk Grove Unified School District v. Newdow, the court did what it loves to do best: It punted. Rather than rule on the merits of the case, it ruled, that Michael Newdow, the atheist who brought the suit on behalf of his daughter, had no standing to sue the government. The child's mother, a Christian, supports the pledge. OUT ON A LIMB The court decided this was more of a custody dispute than a constitutional one, and so spiked the San Francisco-based U.S. Court of Appeals for the 9th Circuit that had agreed with Newdow. The partisans of both sides of this case walked away without a decisive victory. But the vast majority of Americans who support the separation of religion and state, but do not want government to be a G-d-free zone, can breathe a sigh of relief, at least for the moment. The fact is, savvy liberals understood Newdow's suit was a case of overreaching. Polls show that at least 90 percent of Americans support the inclusion of G-d in the pledge, and the backlash from a ruling in Newdow's favor would have almost certainly handed President Bush a cudgel with which he could have bashed Democratic challenger Sen. John Kerry, in spite of the fact that Kerry opposed Newdow's suit. And though it is likely that a majority of the current court would have probably ruled against Newdow on the merits had they chosen to do so, the fact that they did not allows separationists to wait for a more propitious moment and a more favorable court to try again. Daniel Alter, director of civil-rights issues for the Anti-Defamation League, which foolishly supported the pledge ban, told The New Republic that Newdow was a "a good case at the wrong time." But given the innocuous nature of the pledge, it is important to ask the ADL and others who weighed in against "under G-d" whether the interests of the Jews, or any other group of Americans, was really endangered by these two words or the symbolism they convey? Newdow's suit was not completely out of left field. The 9th Circuit agreed with his reasoning, seeing the 1992 case in which the Supreme Court ruled that a rabbi's nonsectarian prayer at a high school graduation ceremony violated the First Amendment as a binding precedent. Justice Sandra Day O'Connor disagreed in her concurring opinion, overruling the 9th Circuit when she said that "under G-d" was merely a permissible "ceremonial Deism" rather than religious worship. 'G-D SAVE THIS COURT' O'Connor wasn't the only one to note irony of an institution which begins each of its sessions with the pronouncement declaring "G-d save the United States and this honorable court," making an issue of the pledge. For all of the talk about the "wall" between religion and state, its hard to point out any part of the federal government in which G-d is a stranger. Both Houses of Congress have chaplains, and G-d is on every coin and dollar bill in our pockets. But Justice Clarence Thomas, in a separate opinion backing the pledge, may have been closer to the truth than his colleagues when he concluded that Newdow was right to claim that his suit followed court precedent. Thomas thought the unwillingness of the Supremes to follow the logic of their previous decisions on the pledge illustrates the questionable reasoning that has led us to the point where the mere mention of G-d is controversial. The First Amendment bans the "establishment" of a government religion. Forcing children to recite sectarian prayers in school was just that, and the Supreme Court was right to ban such prayers in its landmark 1962 decision. This ruling remains unpopular with many, if not most, Americans, who don't understand what it is to be a religious minority. But rather than be satisfied with this step, radical secularists, including some Jews who regard any overlap between religion and state as a threat, have continued to push the envelope ever since. They have often won, but does anyone really think the presence of clergy at graduation ceremonies threatened anyone's rights? Is it reasonable to assert that the Constitution must not only be neutral between religions, as our founders intended, but aggressively anti-clerical? Are we so scared of religion, that we would stigmatize it in this way? As the pendulum has swung further and further in favor of separation, it is religious believers who have rightly come to think of religious speech as the one form of expression that our courts will no longer protect. Rather than defending the rights of minorities, this philosophy has given rise to a legal culture that views religious institutions with a suspicion that is both unwarranted and itself oppressive. Courts have ruled that states have a right to ban financial aid for religious studies alone. Giving parents the financial tools to choose whether their children will attend a failing public school, or a good religious school, has been steadfastly opposed in the name of a flawed separationist theory. Instead of pausing to reload before they try again, this should be a moment for the radicals to rethink their strategy. Religion has thrived on our shores precisely because we have kept government and faith separate. But those who have made the leap from there to a position in which the government is opposed to faith have misjudged both the American people and the Constitution. This entirely unnecessary, and in some ways farcical, debate over the pledge should serve as a reminder of what happens when we allow extremists to determine the public agenda. The court should think long and hard about letting them do so again. Every weekday JewishWorldReview.com publishes what many in Washington and in the media consider "must reading." Sign up for the daily JWR update. It's free. Just click here. JWR contributor Jonathan S. Tobin is executive editor of the Philadelphia Jewish Exponent. Let him know what you think by clicking here. Jonathan Tobin Archives © 2004, WPWG