Michael Newdow’s challenge to the recitation of the Pledge of Allegiance in public schools, argued last week before the Supreme Court, is only narrowly a case about the Constitution. No development in legal theory can explain why the country and its highest court are suddenly caught up in a bitter ideological clash over the constitutionality of students reciting the Pledge with the words “under God.” Rather, the Pledge is merely a straw in the wind of a gathering storm over the social role and social utility of religion.
The passions over religious issues have traditionally been restrained by the widely held assumption that religion is a positive social force, so long as it is not coupled with the coercive power of government. In practical terms this meant a status quo in which there was no official or preferred faith, religious practice was voluntary and not coerced by government, religious groups were given wide latitude to practice their faith, the government did not sponsor or fund religious activity, and a small amount of generic deism — such as the phrase “under God” in the pledge or on the currency — was tolerated. And there was no social animus toward public displays of faith, particularly when those expressions did not challenge anyone else’s right to express their religious views. That status quo, however, is no longer acceptable to large segments of our society.
On the right, there is a push for a greater public role for religion, often including a role in government-funded programs. These efforts to enhance the status of religion in public life are not new, but they have taken on an increased urgency and sharpness.
On the left — and this is new — serious and influential people persistently question whether religion ought to have any place in public life. They insist that religion should be a purely private and personal matter. Naturally, many religious people — including those who do not seek to enlist government in their religious crusades — are not prepared to be quarantined in this way.
Supporters of a larger role for religion, meanwhile, appear remarkably unaware of the fact that public religion has not always been an unvarnished good. Much evil has been committed in the name of faith. In a society as religiously diverse as the contemporary United States, public manifestations of religion, even without governmental involvement, can be divisive and destructive.
The widening gulf in Americans’ views on these matters often results in pitched battles over issues of largely symbolic importance — such as the Pledge. The words “under God” were added to the Pledge in 1954 as a response to the atheism of cold war enemies. While the original decision to add this phrase was a clumsy and improper effort to enlist religion in a patriotic crusade , it has caused little real harm and is not inconsistent with the tradition of “ceremonial deism.” The bid to excise the phrase from the Pledge, however, has sparked predictable alarm among those who see this effort as an assault on the place of faith in the public sphere.
Partisans on the right are all too willing to exploit these passions for their own purposes. Jay Sekulow, chief lawyer for the Rev. Pat Robertson’s American Center for Law and Justice, wrote a fundraising appeal characterizing Newdow’s challenge as an instance of discrimination against religious believers. Whatever else may be said about Newdow’s position, it is not discrimination against religion. The Baptist minister who wrote the original Pledge, sans “under God,” certainly did not intend to discriminate against religious people.
But the Pledge case is only one of many skirmishes over religion’s place in the public sphere. And these divisive clashes are occurring with increasing frequency.
Parents are encouraged by groups interested in evangelizing children to enlist kindergartners and first-graders to proselytize their public school peers by distributing religious messages on holiday gifts of pencils, mugs or candy canes. All over the country, efforts, like those of former Alabama Supreme Court chief justice Roy Moore, are being made to display the Ten Commandments (almost always reproduced from the King James version) on public property. Conservatives are increasingly bold in insisting upon government funding of faith-based solutions to social evils.
From the other side of the growing divide, one hears calls not only for government to end its support for the Boy Scouts, which excludes atheists from membership, but also demands for the Scouts themselves to end their longstanding policy. School officials often deny parental requests to excuse children from assignments that are offensive to religious believers, even as they tailor curricula to avoid conflict with the politically correct crowd. The ACLU, long a stalwart supporter of religious liberty, now demands that the government compel Catholic Church-affiliated institutions to pay for birth control for their employees, in violation of church doctrine. Meanwhile, zoning authorities around the country are challenging the longstanding assumption that houses of worship are inherently beneficial uses of land deserving of special treatment — and they are finding a sympathetic ear in the courts.
The coming presidential campaign threatens to bring about an escalation of the bitter debate over the proper role of religion in American society — a debate that extends far beyond specific disputes over gay marriage or abortion.
The debate rages in the Jewish community as well. The Jewish community is divided between those with intensifying religious commitments — and not only among the Orthodox — and those who are increasingly secular. (Almost half of American Jews are not affiliated with a synagogue.) These segments of the community have views about the role and value of religion that are close to irreconcilable.
There is no ready answer to this clash of worldviews — either in the Jewish community or in the larger society. The Supreme Court will tell us soon whether the Pledge may be recited in schools with a reference to God. Whatever the court decides is unlikely to put these battles to rest — and it could add fuel to the fire.
Given the deep divisions within American society on these issues, it may be time for both sides to take a step back and look at the consequences of trying to vanquish their opponents. While the status quo on church-state issues was often messy, and left much to be debated, it also offered something for everyone. It was certainly far superior to the full-scale culture war brewing today.
Marc D. Stern is the general counsel of the American Jewish Congress.