THE GANG THAT COULDN'T SHOOT STRAIGHT :

Flag of Convenience (Jonathan Cohn, New Republic)

[W]hatever the timing, the Ninth Circuit's decision certainly seems plausible on its face. The Constitution is pretty clear on church-state issues: Congress "shall make no law respecting an establishment of religion." Having schoolchildren recite a pledge that America is "one nation under God," certainly sounds like an establishment of religion. As Judge Alfred T. Goodwin wrote in his ruling, "The Pledge is an impermissible government endorsement of religion because it sends a message to unbelievers that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders."

Critics of the decision may think otherwise, and perhaps they're right. But it's incumbent on them to make a reasoned, legally persuasive case as to why. And on the Sunday shows, the critics didn't do that.

Consider George Will's disquisition on the ruling: "The Ninth Circuit thinks that [the pledge] is an unconstitutional establishment of religion, even though the first Congress, which included some of the constitution's authors, itself hired a Congressional chaplain," Will explained mockingly. "Unless the Ninth Circuit is reversed, today's house and senate chaplains will have to go." It's an interesting point, but not necessarily correct and not all that relevant. Whether members of Congress choose, on their own, to employ spiritual advisers and to profess their own faith is a far cry over whether school children across the country should be made to recite a pledge recognizing that America is a nation under God. More important, the founders' determination to keep a rigid separation of church and state has been well-chronicled. Indeed, as David Greenberg noted in Slate last week, "When Benjamin Franklin proposed during the Constitutional Convention that the founders begin each day of their labors with a prayer to God for guidance, his suggestion was defeated."

Boy, this Pledge ruling is really bringing out some of the worst writing we've ever seen on the Left. In the first place, what religion is established by having kids say the Pledge? Judaism, Hinduism, Episcopaleanism? The very impossibility of naming one means that there is no Establishment.

Second, Judge Goodwin's statement is not a Comnstitutional standard. The First Amendment says establish not endorse. Congress could pass a resolution every day saying that religion is good for you and never run afoul of the Constitution.

Third, it's not individual members but the Congress itself that employs chaplains and has since the first Congress sat. That the Founders considered it appropriate for the Federal legislatureitself to employ clerics is a powerful argument that they were not trying to erect any wall of separation.

Fourth, well, we've already noted the problems with Mr. Greenberg's Slate piece.

Perhaps this is such a bad issue for liberals that it requires this level of open dishonesty for them to even argue their side. But, if so, maybe they should just acknowledge they're wrong and move on to one they can win, like keeping school vouchers out of the hands of poor black families.

Posted by Orrin Judd at July 2, 2002 8:20 PM