Republicans and religious conservatives were furious Wednesday over the appellate court decision striking "under God" from the Pledge of Allegiance, but the despair was just as deep among those who usually oppose the religious right. They might agree with the 9th Circuit Court of Appeals' ruling, but they believe it's the best thing that's happened to conservatives since the U.S. Supreme Court put George Bush in power and they're worried that it will distract from more pressing issues like school vouchers and financial scandals.
"Political controversies over the Pledge of Allegiance are tailor-made for demagoguery," says Robert Boston, assistant director of communications at Americans United for Separation of Church and State, a nonprofit based in Washington. "There's no shortage of politicians who will line up to rant and rave about this all day long. This is a godsend for the religious right. They're going to raise millions of dollars on this issue. I'm sure even as we're speaking, there are presses running overtime printing fundraising letters saying, 'Save the Pledge of Allegiance!'"
Meanwhile, he points out, the Supreme Court Thursday ruled that public money could be used to pay religious school tuition, a huge victory for conservatives -- and one with more substantial consequences than the pledge decision. "We're on the verge of tax-supported religion in this country. It's a startling change of policy, and instead of taking a hard, serious look at that, we're going to spend a couple of months arguing about the Pledge of Allegiance."
The arguing has already started, even though in the political arena there's not much to argue about. Expressions of shock over the decision have been bipartisan, and many experts say it will almost certainly be overturned. Appellate Judge Alfred T. Goodwin, who wrote the controversial opinion, put it on hold Thursday pending a review by other judges in the 9th Circuit.
The 9th Circuit covers nine Western states -- Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington state -- and is widely seen as the most liberal appellate circuit in the federal court system. Goodwin was appointed by the late President Richard Nixon, a Republican, but he joined in a 2-1 ruling that reciting the pledge in public schools is unconstitutional because the phrase "under God" violates the separation of church and state. Republicans wasted no time trying to use it as leverage to attack Sen. Tom Daschle, D-S.D., the majority leader, and to demand that Congress approve judges nominated by President George W. Bush. One Republican crowed about the ruling's P.R. value, but refused to go on the record for fear of seeming "opportunistic."
Jonathan Grella, a spokesman for Republican Texas Rep. Tom DeLay, the House majority whip, insisted just hours after the ruling on Wednesday that his party would never use the issue politically. Moments later, he urged "House Democrats and Senate Democrats [to] put pressure on the do-nothing Dachslecrats in the Senate to take up President Bush's judicial nominees." Jan LaRue, chief council of the conservative Washington-based Concerned Women of America, an influential religious-right group, says she's telling her membership to call their legislators and demand action on nearly 50 Bush judicial nominations that are pending in the Senate.
Kevin Sheridan, spokesman for the Republican National Committee, echoes that message. "I think the base has been and will continue to be inspired by events such as this," he says. "I think it speaks to a bigger issue and that is that Tom Daschle and [Sen.] Patrick Leahy are standing in the way of the confirmation of qualified and sensible judges. I would hope that it's a wake-up call to the American people that certain Democrats, especially in the Senate leadership, have an agenda that may be out of step with the rest of America, regardless of how they stand on this issue alone."
Immediately after the pledge decision, Democrats were quick to join DeLay. Daschle called it "just nuts." Sen. Joe Lieberman, D-Conn., called for a constitutional amendment to preserve the pledge. The Senate voted unanimously to condemn the decision. Conservatives aren't letting any of that stop them. "There's no question that Republicans devoutly, fervently want this to be a major issue and they want this to have an impact on the judicial selections process," says Ralph Neas, president of the civil liberties group People for the American Way. "But in order to have a genuine controversy, you have to have disagreement between the parties."
So while pundits obsess over an issue civil libertarians don't necessarily want to fight for, Neas despairs that the tempest is diverting attention from what he perceives as a more serious erosion in the separation of church and state. Specifically, the landmark ruling by a sharply divided U.S. Supreme Court held that public money can be used to underwrite tuition at religious schools, provided parents can choose among a range of religious and secular schools.
"This decision, which was a disaster, took a sledgehammer to the [constitution's] establishment clause," Neas says. The United States is at "our most dangerous moment in many, many decades. One or two more Scalias or Thomases on the Supreme Court and we will have a constitutional catastrophe." Compared to that, he said, schoolchildren reciting the words "under God" isn't a high priority right now.
People for the American Way is a staunch defender of the wall between religion and public life, but Neas says in this case, constitutional law isn't clear cut. Amazingly, both Neas and Concerned Women of America's LaRue cited the same justification for the pledge's legality -- what late liberal Justice William Brennan called "ceremonial deism."
"Various patriotic exercises and activities used in the public schools and elsewhere which, whatever may have been their origins, no longer have a religious purpose or meaning," Brennan wrote in a 1963 case. "The reference to divinity in the revised pledge of allegiance, for example, may merely recognize the historical fact that our nation was believed to have been founded 'under God.' Thus reciting the pledge may be no more of a religious exercise than the reading aloud of Lincoln's Gettysburg Address, which contains an allusion to the same historical fact."
That's not to say that opinion is unanimous against the authors of Wednesday's decision. Many legal scholars argue that, while the decision will probably not stand, given past Supreme Court rulings about religious coercion in public schools, the judges acted appropriately.
"I think the decision is built on a very firm chain of Supreme Court precedent striking down prayer in the classroom, at graduation ceremonies and in the football field. It has rejected the placement of the Ten Commandments in classrooms," says Jamin Raskin, a professor of constitutional law at American University and author of "We the Students," a book about students and constitutional rights. "If we could somehow drain the emotion from the discussion, the vast majority of people would see this as a perfectly logical and modest decision."
While Raskin supports what the appellate court did, he shares the worry that it's given ballast to conservatives. "There's no doubt that the Republican Party is using the 9th Circuit opinion to change the subject from the ethical collapse of corporate America," he says. "It's classic Republican politics where the flag and God are used to replace issues of immediate concern to peoples' lives. It's the temporary triumph of cheap symbolic politics over dealing with the nation's serious structural problems."