AJCongress Stands Alone on Pledge Issue

By Ori Nir

Published January 09, 2004, issue of January 09, 2004.
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WASHINGTON — Efforts to forge a compromise position on the debate over the Pledge of Allegiance have left the American Jewish Congress standing alone, at odds with its erstwhile allies in both the civil-rights community and religious groups.

First the Jewish group broke with other civil-rights groups, including the Anti-Defamation League and the American Civil Liberties Union, by defending the inclusion of the words “under God” in the pledge. But, while religious conservatives are arguing that the government should be free to acknowledge God, AJCongress filed an amicus brief with the Supreme Court claiming that the controversial phrase should be permitted because it “has no substantial contemporary religious content.”

The case stems from a lawsuit filed by atheist Michael Newdow, who challenged the recitation of the words “under God” in the pledge at his daughter’s public school in Sacramento, Calif.

Sources at AJCongress said that the brief was opposed by several senior officials in the organization, who were unhappy to find themselves on the same side of the debate as groups that favor relaxing the division between government and religion, including the Orthodox Union and Agudath Israel of America. The AJCongress brief reflects the strategy increasingly advocated by the organization’s top lawyer, Marc Stern, who argues that a more pragmatic approach is the best way to maintain the division between church and state.

“This is a matter of tactics and judgment,” Stern said. Given the current “political and cultural reality,” he said, the tactical question is whether it is better to fight to apply the principle of “keeping government religiously neutral” at every opportunity or to attempt to “explain away the supposed breach of neutrality.”

“The question of judgment,” Stern added, “is whether every principle is to be driven to its farthest possible reach.”

In this case, Stern and others argued during internal AJCongress discussions, a Supreme Court decision against the pledge would likely spark a serious push among conservatives for a constitutional amendment formalizing the current wording. Under this scenario, an amendment would attract significant support from Democrats — presidential hopeful Senator Joseph Lieberman has already said he would support such a measure — and fuel additional efforts by religious groups to lower the church-state wall.

These fears, Stern told the Forward, prompted his organization to conclude that “the most prudent choice is to offer the court a basis for deciding a case in a way that does minimum damage” to existing church-state doctrine. As a result, AJCongress opted not to frame the case as a debate over whether the government is permitted to acknowledge God, but over whether the pledge conveys a religious sentiment.

“This is not an issue of principle, but a matter of judgment,” Stern said.

According to Stern, the question for the court is when mention of God ceases to represent a religious conviction and becomes part of a “ceremonial” expression of patriotism. In its brief, AJCongress argued that the phrase “under God” has become part of America’s “civil religion” and as a result should not be stricken from the oath that millions of American schoolchildren recite every day.

The ADL will soon file a brief supporting Newdow, said Steven Freeman, the organization’s director of legal affairs. The American Jewish Committee has not made a final decision, but is unlikely to weigh in on either side. The Reform movement, which usually stands with liberal groups on church-state issues, has decided not to take a position.

The National Jewish Coalition on Law and Political Affairs, an Orthodox coalition that includes the OU and Aguda among others, has filed an amicus brief defending the pledge, but on different grounds than AJCongress.

“Ours is a very traditional attitude towards the meaning of ‘under God,’” said Nathan Lewin, a constitutional lawyer in Washington who often files briefs on behalf of the coalition. “We believe that there should be recognition in the United States of the fact that this country has achieved its success and prominence because of God, because of its acknowledgement of God. As our brief says, that is a mark of a civilized society. So our position is nothing like that of the American Jewish Congress.”

The AJCongress brief invokes the concept of “ceremonial deism,” a term coined in 1962 by Eugene Rostow, then dean of Yale Law School, to describe a category of customary governmental references to God which the court has permitted on the grounds that they simply acknowledge America’s historically religious roots rather than endorse a certain religious belief. Courts have relied on the concept to defend the printing of the phrase “In God We Trust” on U.S. currency, the adoption of Christmas as a national holiday and the erection of a national Christmas tree at the White House.

Still, “ceremonial deism” has generally remained a vague concept, and observers expect it to be closely scrutinized by the justices during the pledge case. In a 2-1 decision issued by the 9th Circuit Court in California, the majority rejected the argument that the pledge did not convey a religious message. “The text of the official pledge, codified in federal law, impermissibly takes a position with respect to the purely religious question of the existence and identity of God,” the majority wrote.

Observers say it is quite possible that the Supreme Court will uphold the circuit decision, especially since Supreme Court Justice Antonin Scalia has bowed to Newdow’s request that he recuse himself from the case. At issue was Scalia’s harsh critique of the lower-court decision during a conservative event last year.

Some church-state-separation purists, including the Rev. Barry Lynn, executive director of Americans United for Separation of Church and State, reject the entire notion of “ceremonial deism.”

“I find it very difficult to accept,” Lynn said. “If you use the word God, you are using a powerful and meaningful word, so I have trouble with this notion.”

Lynn noted that Congress inserted the phrase “under God” into the pledge in 1954, explicitly to distinguish America from the Soviet Union. When President Dwight D. Eisenhower signed the bill authorizing the change, he stated, “From this day forward, the millions of our schoolchildren will daily proclaim … the dedication of our nation and our people to the Almighty.”

Lynn said, “This was about a regular affirmation of belief in God as traditionally understood.”

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