Trashing the First Amendment. (Church And State).

On June 22, 2002, a bare majority of the Supreme Court--Justices William Rehnquist, Antonin Scalia, Clarence Thomas, Anthony M. Kennedy, and Sandra Day O'Connor--blithely brushed aside more than a half century of the Court's own establishment clause precedents and upheld the Ohio legislature's brazen diversion of public funds to the support of sectarian public schools.

The ruling in Zelman v. Simmons-Harris holds that Ohio's pilot voucher plan "is neutral with respect to religion" and doesn't violate the First Amendment's establishment clause. Justice O'Connor, who cast the deciding vote, turned her back on her own position of two years earlier in Mitchell v. Helms and denied, astonishingly, that the new ruling "marks a dramatic break from the past."

The majority--the same five justices who gave the keys to the White House to the loser of the popular presidential vote in 2000--based its ruling on slim, minor precedents and essentially ignored the bulk of constitutional law on the subject since the magisterial 1947 Everson decision.

In dissent, Justice John Paul Stevens pointed out that the "voluntary choice" view of the majority won't wash because it is "quite irrelevant to the question whether the government's choice to pay for religious indoctrination is constitutionally permissible." He added that "whenever we remove a brick from the wall that was designed to separate religion and government, we increase the risk of religious strife and weaken the foundation of our democracy."

Justice David Souter accused the majority of repudiating the 1947 Everson ruling, in which all nine justices then agreed that the First Amendment means at least that "no tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called or whatever form they may adopt to teach or practice religion." He added that the Court cannot "consistently leave Everson on the books and approve the Ohio vouchers."

Souter went on to write that "the scale of the aid to religious schools approved today is unprecedented, both in the number of dollars and in the proportion of systemic school expenditure supported." Souter was joined in his strong dissent by Justices Stevens, Stephen Breyer, and Ruth Bader Ginsburg.

In a separate dissent Breyer warned of "the risk that publicly financed voucher programs pose in terms of religiously based social conflict." Breyer accused the majority of "turning the clock back" on fundamental constitutional principles and adopting "an interpretation of the establishment clause that the Court rejected more than half a century ago."

In thumbing its nose at constitutional precedent, the Rehnquist majority also flipped the bird at the vast majority of Americans who, in twenty-five statewide referenda over the past thirty-five years, have registered 68 percent to 32 percent opposition to school vouchers or their analogs.

Rehnquist and his pals, cheered on by the present occupant of the White House, have shown contempt for the basic right of all Americans not to be compelled through taxation to contribute involuntarily to religious institutions, whether their own or someone else's.

This Court's slim majority has opened a Pandora's box. From this day forward nearly every session of Congress and every state legislature will be torn by demands from sectarian special interests and their political allies for direct or indirect tax support for denominational indoctrination. Society will face fragmentation along religious, class, ethnic, ideological, and other lines. Shoved aside will be consideration of what education in this country really needs: more adequate and more equitably distributed support for democratic public education, smaller classes, and levels of compensation high enough to attract and retain the best teachers.

The day before the Supreme Court's horrible voucher ruling, a three-judge panel of the Ninth Circuit U.S. Court of Appeals held that the 1954 act of, Congress mandating inclusion of the phrase "under God" in the Pledge of Allegiance amounts to an unconstitutional "endorsement of religion." The ruling, while technically correct, predictably triggered a firestorm of criticism often verging on hysteria, given the climate of opinion generated largely by the religiopolitical right.

In all probability the ruling will be overturned by the whole Ninth Circuit or by the Supreme Court. If not, it is likely that Congress will initiate a constitutional amendment to restore the phrase and that such an amendment could be ornamented with clauses dealing with school prayer, school vouchers, science class creationism, and anti-abortion measures. Could such an amendment be blocked in state legislatures? I will let you do the math.

A lesson to be learned from all this is that being right is not enough. It is also necessary to be strategically smart. There's no value in making matters worse.

Incidentally, the 1954 modification of the pledge was the second, not the first, since the pledge was initiated in 1892. We who were kids in school before World War II remember that we said the Pledge with our right arm extended. After the war began we switched to placing our hands over our hearts because the old way too closely resembled the Nazi salute to Hitler.

Patriotism and religion, as the Supreme Court pointed out in 1943 in the Barnette case, should be voluntary, not mandatory.

Edd Doerr is president of the American Humanist Association and of Americans for Religious Liberty and has authored or edited numerous books and articles.