Under God’ at Supreme Court

WASHINGTON, March 24 (JTA) — If “One nation, under God” is acceptable, even though it might alienate atheists, what’s wrong with “One nation, under Jesus”? The U.S. Supreme Court considered that question Wednesday during arguments in the case of a California man who claims he was injured by his daughter’s recitation of the Pledge of Allegiance in a public school. The oral arguments in Elk Grove Unified School District v. Newdow focused both on whether a non-custodial parent has standing to protest the actions of his child’s school, and the issue of “ceremonial deism” and the constitutional separation of church and state. Many Jewish groups, who often are at the forefront of efforts to keep religion out of the public sphere, are not opposed to the pledge. They argue that the phrase “under God” reflects American patriotism and has no coercive effect. Michael Newdow argued Wednesday that, as an atheist, he was injured when his daughter was told to “get up, put her hand over her heart and say her father is wrong.” “Government is doing this to my child,” said Newdow, who argued on his own behalf. “Government is saying there is a God and my dad says no, and that’s a huge injury to me.” Setting off a firestorm of controversy, the Ninth Circuit U.S. Court of Appeals in California ruled in 2002 that a pledge with the phrase “One nation, under God” violates the separation of church and state, and therefore can not be mandated in public schools. There has been a hold on the ban ever since, awaiting clarification from the high court. The justices questioned whether the phrase was vague enough to be inclusive, with Chief Justice William Rehnquist noting that the phrase was approved by Congress unanimously in 1954. But Newdow — who was born Jewish — suggested that the phrase “One nation, under Jesus” also would have majority support in the country, but still would be offensive to others, including Jews. Newdow suggested that the pledge was different from putting “In God We Trust” on money, and from other governmental mentions of God, because in this case students are pressured to participate. He acknowledged that students can opt out of the pledge, but said the overall effect of having the pledge led by teachers is coercive. At one point, Justice Ruth Bader Ginsburg, one of two Jews on the court, questioned whether the pledge phrase is more problematic than the words “the year of our Lord,” which presidents use at the end of proclamations. U.S. Solicitor General Theodore Olson argued that the phrase no longer has the same religious meaning as it did when it was added to the pledge in the 1950s. At the time, it was seen as a counterweight to the godlessness of communism. “The ceremonial rendition of the Pledge of Allegiance repeatedly over the years has caused reasonable observers to understand that this is not a religious invocation,” Olson said. He also said there is a distinction between purely religious exercises, like prayer, and acknowledgment of a deity. The arguments also focused on whether Newdow has standing in the case, since he is not the child’s custodial parent. The justices questioned whether it is appropriate for more than one parent to instruct schools on what is in a child’s best interest, and whether Newdow was injured by his daughter’s recitation of the pledge. The child’s mother, Sandra Banning, a born-again Christian, was in the audience and said afterward that her daughter does not object to reciting the pledge and even volunteers to lead the class. Liberal Jewish groups, generally quick to weigh in on church-state issues, have remained relatively quiet on this issue, viewing such ceremonial deism as harmless. The American Jewish Congress, which historically has promoted a strict separation of church and state, filed a brief with the Supreme Court supporting recitation of the pledge in public schools. It argued that while the Appeals Court decision has “logical appeal,” it goes against historical experience, and the phrase “under God” has no coercive effect. “It’s our belief that the phrase at best has marginal religious meaning, and in the political real world, a decision to ban the phrase would lead to a fast-track constitutional amendment,” said Marc Stern, the group’s lawyer. Though many Jews would prefer that the pledge not include the phrase, Stern said, a constitutional amendment enshrining the phrase in the pledge might contain provisions or other language that would do more damage. Orthodox groups also filed a brief supporting Elk Grove. The Anti-Defamation League, which called the California decision “wrong” in 2002, later filed a brief on behalf of Newdow arguing that the pledge exercises subtle coercive pressure on students to embrace God when the students are too young to critically reflect on what they are saying. Several hundred people gathered on the court’s steps to pray for affirmation of the term “under God” in the pledge. “This court will decide whether this nation remains ‘One nation under God,’ or whether we shake our fists in God’s face and say, ‘No thanks, we’d rather go at it alone,’ ” said Rev. Rob Schenck, president of the National Clergy Council. A small group of atheists also protested outside the court.