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Little Dilemma for Jews with ‘under God’ As U.S. Supreme Court Prepares for Case

March 17, 2004
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When the words “under God” were first uttered in an American political context, the issue was not a question of church and state, but Christian and Jew.

Abraham Lincoln used the term “under God” at the end of his Gettysburg Address on Nov. 19, 1863, to describe the American nation and the new “birth of freedom” he envisioned as the lasting effect of the Civil War.

Back then, Jews welcomed the term as a sign that they were being included in what many saw as a Christian society, said Jonathan Sarna, a professor of American Jewish History at Brandeis University.

“I do believe that the phrase in the Gettysburg Address is a very important phrase and was meant to be inclusive,” Sarna said.

Now, with the U.S. Supreme Court poised to address next week whether a teacher-led Pledge of Allegiance in school is constitutional because of the reference to God, the Jews’ historic take on this seemingly common phrase in American public life has become relevant.

It also helps explain why most Jews — including much of the organized Jewish community, which often is on the forefront of battles to keep religion out of the public sphere — are not opposed to the pledge.

The case, Elk Grove School District v. Newdow, which the court is scheduled to hear March 24, stems from a legal challenge brought by a California father, Michael Newdow, who was born Jewish but is an avowed atheist.

He sued the Sacramento-area school district on behalf of his daughter, arguing that the Pledge of Allegiance said in school was a violation of her constitutional rights.

Setting off a firestorm of controversy, the Ninth Circuit U.S. Court of Appeals ruled in 2002 that the pledge that includes the phrase “One nation, under God” violated the separation of church and state, and therefore could not be mandated in public schools. There has been a hold on the ban ever since, awaiting clarification from the high court.

In the 19th century, at the time of Lincoln’s now-famous speech, Sarna said, Jews fought for equal footing. If there was a Protestant chaplain in the military, Jews wanted a Jewish chaplain as well.

“‘Under God’ considered Jews as insiders, as opposed to a Christian nation,” he said. “Jews argued there was a sense of equivalence.”

Nowadays, references to God in public and political contexts are omnipresent. U.S. cash currency includes the phrase “In God We Trust;” there are chaplains in Congress and in the military, there are 10 Commandments-related art in U.S. courthouses, and “God Bless America” is sung in schools and government halls.

The term “under God” was added by Congress to the Pledge of Allegiance in 1954 at the insistence of the Knights of Columbus, a Catholic fraternal organization.

Sarna said the Jewish community at the time did not fight the addition of the phrase, because of concerns of being viewed on the side of Soviet atheists in the Cold War era.

“The Jewish community had a lot to lose by opposing ‘One nation, under God,’ ” said Sarna, author of the recently released “American Judaism: A History.”

“Non-Jews would have questioned their patriotism and it would have broken their alliances with liberal Protestants and Catholics.”

Sarna said it was very important at the time for Jews not to be seen as opposing religion itself, when atheists were being lumped in with Communists as enemies of the United States.

Marc Stern, a lawyer for the American Jewish Congress, said he believes the phrase had religious impact in 1954, and that one of the major motivations for it was to make religion a factor of distinction between Americans and Communists in the Soviet Union.

Liberal Jewish groups, generally quick to weigh in on church-state issues, have remained relatively quiet on the current Pledge of Allegiance issue, viewing this type of what they call “ceremonial deism” as harmless.

“It conveys a resonance of American history and culture without conveying religious activity,” said Rabbi David Saperstein, the director of the Religious Action Center for Reform Judaism and an authority on the Constitution. “It offers a comfort level that it otherwise wouldn’t have.”

The AJCongress, which historically has promoted a high wall of separation between church and state, filed a brief with the Supreme Court supporting the recitation of the pledge in public schools.

The organization argued that while the Appeals Court’s decision had “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 Stern, the group’s lawyer.

While Stern said many Jews would prefer the phrase not be in the Pledge of Allegiance, a constitutional amendment that would enshrine the words in the pledge might contain provisions or other language that would do more damage.

In a rare example of unity across the Jewish religious spectrum, non-Orthodox groups took a similar stance to Orthodox groups in briefs filed before the court in the case.

For it’s part, the Anti-Defamation League has reversed its view on the issue — and now stands virtually alone in the organized Jewish community in challenging the phrase.

In 2002, when the Appeals Court ruled in favor of Newdow, the ADL called the ruling “wrong” and said “it goes against the culture and traditions of this country, which was founded on principles respectful of faith.”

But the group later filed a brief to the Supreme Court on behalf of Newdow.

“Upon reflection, our lay leadership decided we should participate in this case,” said Steven Freeman, ADL’s director of legal affairs.

“It’s not a case we would have brought, but we felt that since the court is considering the case, we had to take the position consistent with our interpretation of the Establishment Cause,” part of the First Amendment, designed to ensure that government does not endorse or embrace one religion or religion itself.

The ADL argues in its brief that recitation of the Pledge of Allegiance, led by a teacher, places subtle coercive pressure on students to embrace God when the students are too young to critically reflect on the statement’s meaning.

“The school setting places undue coercion on students to join their fellow students in state-prescribed religious expression, or to engage in silent protest that may well be misperceived as silent approval,” the brief states. “This places the objecting student in an untenable position, and thereby exacts religious conformity in a manner that the Constitution forbids.”

While there is a concern that allowing for the use of God in some public contexts can create a slippery slope, many feel there is a line in the sand between acceptable uses of God and those that infringe on religious freedom.

Saperstein said many in the Jewish community view violations of church-state separation in the same manner as Justice Potter Stewart famously handled defining pornography in a 1964 Supreme Court opinion: “I know it when I see it.”

And as justices of the Supreme Court consider the case before them next week, they will walk in to the chamber as they do each day as a marshal utters the phrase, “God save the United States and this honorable court.”

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