Pledge of Allegiance and slippery slopes

[Volokh, Eugene]

        This is an intriguing argument, but I wonder whether it's really
quite sound.

        By "plays into the hands of those in the Islamic world who portray
us as infidels in order to justify a 'jihad' against the United States," I
take it that Prof. Katz is implicitly referring to an *audience* to whom the
portrayal is made, as well as the would-be portrayers.  What sort of
audience would (1) be receptive to the notion that Americans' infidel status
justifies a jihad against us, but (2) be influenced in its judgment by
whether the American Pledge of Allegiance says "under God"?  I just find it
a bit hard to imagine such a group of listeners.

        Eugene

Robert Katz writes:

> Whatever one thinks about the Ninth Circuit panel's decision
> on the merits, it seems clear that it's poorly timed. It
> plays into the hands of those in the Islamic world who
> portray us as infidels in order to justify a "jihad" against
> the United States.  In light of this, perhaps the panel
> majority should have explored the "passive virtues," and
> found a way of not having to decide it.  I seem to recall
> someone arguing that during the Cold War, some judges were
> swayed to make more pro-civil rights decisions in order to
> increase our stature in the Third World, so as to help us win
> their hearts and minds in the struggle against world
> communism. That was wise. The broader normative point is the
> same -- it can be appropriate for judges to consider the
> foreign policy consequences of their decisions. The
> application is different, though. The Cold War inspired
> judges to make federal law conform more closely to our ideals
> about equality.  Here, the War against Terrorism might have
> prompted these judges to downplay our commitment to
> separation of church and state, especially where the
> practical stakes in terms of coercion, etc., were so low, but
> the public relations stakes were so high.
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