Jewish Organizations Split Over Pledge Case Strategy

By Nacha Cattan

Published November 14, 2003, issue of November 14, 2003.
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As the legal battle against the Pledge of Allegiance heads to the Supreme Court, Jewish civil rights groups are divided in their response to the controversial case.

The American Jewish Congress is planning to challenge a recent appeals court ruling that the pledge is unconstitutional. The Anti-Defamation League, on the other hand, in a reversal of its past position, has decided to protest policies that require public-school teachers to lead recitations of the pledge.

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

Both the ADL and AJCongress plan to file amicus briefs with the Supreme Court in support of their respective positions. At issue is a difference of approach over how best to achieve the same goal of church-state separation, Jewish communal officials say. While the ADL is taking on the pledge in the classroom, AJCongress worries that a victory for the anti-pledge forces could trigger a backlash in the form of a constitutional amendment that would shatter the wall between religion and government.

“What divides us and the ADL is a tactical and perhaps strategic decision of what gains you more in the long run,” said the general counsel of AJCongress, Marc Stern. “The risk is you get a constitutional amendment that says nothing in the Constitution bars religious expression in schools.”

The ADL dismissed such concerns in a memo to its leaders: “The civil rights leadership is well aware that filing this amicus brief will be unpopular. However, that has never been a reason we have chosen to file or not to file an amicus brief on an issue directly affecting our mission.” The organization’s National Legal Affairs Committee approved the filing of the brief by a vote of 26 to 11.

The ADL’s current position represents a shift from its past criticism of the legal battle against the pledge. In June 2002 the ADL criticized a broad ruling by the Ninth Circuit Court of Appeals in California, which deemed the pledge unconstitutional because of the phrase “one nation under god.” At the time, the ADL issued a statement saying the ruling “goes against the culture and tradition of this country, which was founded on principles respectful of faith.”

But this time around, ADL officials argue, the Supreme Court is focusing on the narrow question of whether it is constitutional for teachers to be required by public-school district policy to lead willing students in reciting the pledge.

“The ADL doesn’t have a problem with the words ‘under god’ in the Pledge of Allegiance,” the ADL’s national vice chair for civil rights, Martin Karlinsky, told the Forward. “We’re dealing with schoolchildren and with role models in schools who are required to lead it. The circumstances are inherently fraught with compulsion or coercion and we feel that’s a violation of church-state separation.”

Karlinksy said that laws prohibiting anyone from being compelled to recite the pledge is not sufficient protection for children, who may feel pressured or alienated by their teachers and classmates.

But ADL’s position was met with protest by one of its lay leaders, Seymour Reich, the past president of B’nai Brith International: “I don’t think reciting the pledge in class is a coercive situation. It’s not unlike having an American flag in the classroom.”

The AJCongress, meanwhile, plans to file a brief challenging the notion that the pledge is a religious statement. “It is so diluted by massive daily repetition it no longer communicates an important religious message,” Stern said. The organization’s top lawyer said that AJCongress will not address the specific debate over the recitation of the pledge in schools. “The problem is that if they do prevail, have they won the battle but lost the war?”

The Reform movement, a consistent liberal voice on church-state issues, has decided not to weigh in on the case. Sources familiar with the decision-making process say that many board members of the Union for Reform Judaism, formerly known as the Union of American Hebrew Congregations, either rejected the argument that the pledge should be viewed as a church-state issue or were against taking an unpopular stand on the issue. The American Jewish Committee has also decided to stay out of the case.

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