On the eve of our great national birthday party and in the aftermath of Sept. 11, when millions of us turned to God and prayed for forgiveness of individual and corporate sins and asked for His protection against future attacks, the 9th Circuit Court of Appeals in San Francisco has inflicted on this nation what many will conclude is a greater injury than that caused by the terrorists.
The court ruled Wednesday that the Pledge of Allegiance, as recited by millions of American schoolchildren, is unconstitutional because Congress, in 1954, inserted the words "under God." According to the court, that phrase violates the First Amendment clause prohibiting the "establishment of religion." Why did it take them 48 years to reach such a conclusion? A single atheist parent in California filed the lawsuit on behalf of his elementary school daughter. Couldn't he have simply let his daughter opt out of reciting the pledge, as children are permitted to avoid sex education classes their parents don't like?
Politically, this case could be bigger than the O.J. Simpson murder trial. If the government appeals the decision (and you know it will) and arguments occur in the fall, the case will attract national attention at the start of a new school year and just before congressional elections. The political timing could not be better for the GOP.
Recall the scene in the film "Miracle on 34th Street" in which the district attorney is trying to prove there is no Santa Claus. He's forced to give up the case when his own son testifies to his belief in Santa and the U.S. Post Office, "an agent of the federal government," in the words of the defense lawyer, brings hundreds of letters addressed to Santa to the courtroom where one "Kris Kringle" is on trial.
This case will be manna for Republicans, whose party is most identified with patriotism and flag-waving. They can say that these San Francisco judges (remember Ambassador Jean Kirkpatrick's derisive 1984 line, "those San Francisco Democrats"?) are the types of liberal judges favored by Senate Judiciary Committee Chairman Pat Leahy (who continues to hold up confirmation hearings for many of President Bush's nominees), Senate Majority Leader Tom Daschle, and House Minority Leader Dick Gephardt. Bush's political adviser, Karl Rove, must be salaaming toward San Francisco. This will be bigger than the late Lee Atwater's strategy of branding and burying Michael Dukakis, the 1988 Democratic presidential candidate, as a "card-carrying member of the ACLU."
The 9th Circuit Court's ruling will encapsulate what many Americans, especially crucial swing voters, think is wrong with this country. We tolerate and protect those who wish to take God's name in vain, whether it's a cursing student or a book containing blasphemies that is assigned by a teacher - who is an agent of the state. But we penalize anyone who dares to speak well of God and treat the Bible as contraband, where once it was welcomed and even given out free in schools. Many Americans will see this judicial attempt to further secularize culture as less of an effort to protect the rights of a child than part of our national problem.
In addition to whatever political benefits (or detriments, depending on the party) this ruling might have, it also could be the last straw for many who have children in public schools. The Supreme Court's decision Thursday upholding the constitutionality of Cleveland's school choice program, which allows taxpayer money to be used to underwrite tuition at private and parochial schools -- including religious schools -- will allow many families the financial freedom to seek schools more friendly to their beliefs.
I predict this ruling will not stand, even if the U.S. Supreme Court upholds it. If upheld on appeal, it will turn millions of Americans into lawbreakers, because they'll continue to say the Pledge of Allegiance, just as many continue to pray before school athletic contests in violation of court prohibitions.
The overwhelming majority of Americans have been forced to stomach a lot of garbage in recent years, from pornography to flag burning, all for the sake of a supposedly "healthy" First Amendment. For them, any move to ban the Pledge will be the last straw and woe to the politician or judge who gets in their way.