In a previous article, we reviewed the factors that the Supreme Court is likely to consider in deciding the case of Newdow v. U.S. Congress. We looked at these factors:
1. What the Establishment Clause allows and what it prohibits
2. The intent of the Founders
3. The Lemon test
4. The special nature of public schools
5. Longstanding traditions, our national heritage, Ceremonial Deism, and stare decisis
In this article, we look at how the current justices have used these factors in deciding previous Establishment Clause cases. That should give us a good idea as to how the court will rule in Newdow. We begin by looking at how the Chief Justice used these factors in deciding previous Establishment Clause cases.
We look first at the case of Stone v. Graham, decided in 1980. In this case, the court found unconstitutional a Kentucky law that required the posting of the Ten Commandments in every public school classroom. The court based its decision on the Lemon test, which requires a law to have a “secular legislative purpose.” The court found that the law had no such purpose, that the real purpose for posting the Ten Commandments in classrooms was to promote religion.
Justice Rehnquist dissented. He wrote that, “the Ten Commandments have had a significant impact on the development of secular legal codes of the Western World.” What a curious thing to say. While the idea that our law is somehow based on the Ten Commandments is popular, it is more myth than reality.
The Western World doesn’t have laws that require people to put one god above all others; we don’t have laws against using any god’s name in vain; we don’t stone people to death for working on Saturday. Our laws against murder and theft and adultery aren’t derived from the Ten Commandments. They come to us from the founders of Western Civilization: the Greeks and the Romans. Our laws come from Pagans, not Jews. In this case, Rehnquist places a myth before the law.
Justifying his dissent in Stone, Rehnquist wrote, “The Establishment Clause does not require that the public sector be insulated from all things which may have a religious significance or origin.” As we noted in the previous article, the Supreme Court has long held that the Establishment Clause requires government to be neutral toward religion, to not favor some religious beliefs over others. Does posting the Ten Commandments in public school classrooms exhibit such neutrality, or does it favor, say, Judaism over Hinduism?
The next case of interest is Wallace v. Jafree, decided in 1985. The case was about an Alabama law that authorized a one-minute period of silence in public schools. It authorized public school teachers to lead “willing students” in prayer to “Almighty God . . . the Creator and Supreme Judge of the world.” The court relied on the purpose prong of the Lemon test to find the Alabama law unconstitutional.
Again, Justice Rehnquist dissented. He attacked as a “misleading metaphor” the notion of a wall of separation between church and state. He dismissed the metaphor, even though the court relied on it since 1879. He concluded that the Lemon test should be abandoned since it, “has no more grounding in the history of the First Amendment than does the wall theory upon which it rests.” In his dissent, he showed his willingness to abandon longstanding precedent.
In Wallace, Rehnquist offered an essay on the real meaning of the Establishment Clause. He concluded that the clause was “designed to stop the Federal Government from asserting a preference for one religious denomination or sect over others.” Given that, would Rehnquist find that the Pledge asserts a preference for Jews over Hindus, for those who believe there’s only one god over those who believe there are many gods?
Let’s look at one more case, the case of Santa Fe School District v. Doe, decided in 2000. In this case, the court found it a violation of the Establishment Clause for prayers to be given before sporting events at a public school. Chief Justice Rehnquist dissented. He wrote that the court’s decision, “bristles with hostility to all things religious in public life.” Since the prayer was given by a member of the student body who composed the prayer, he concluded that it was private speech. He referred to a previous Supreme Court decision that said there was a, “crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect.”
Which raises the question: will Chief Justice Rehnquist agree that the current version of the Pledge is government speech endorsing religion, and is therefore unconstitutional? Of course not. In Santa Fe, he wrote (sarcastically) that the court’s opinion, with which he strongly disagreed, meant that adding “under God” to the Pledge was unconstitutional. He’ll certainly vote to overrule the appeals court’s ruling in Newdow.
While Justice Rehnquist says the Lemon test should be abandoned, Justice O’Connor has tried to refine it. Showing much greater respect for precedent, she’s tried to come up with a successor to the Lemon test, “a Grand Unified Theory” that would resolve all Establishment Clause cases. In Lynch v. Donnelley, she proposed the Endorsement test. The Endorsement test asks whether a “reasonable observer” would find that a law or government action either endorses or disapproves of religion. If so, then it violates the Establishment Clause. Why? Because, as she puts it, “the religious liberty so precious to the citizens who make up our diverse country is protected, not impeded, when government avoids endorsing religion or favoring particular beliefs over others.”
Consider what O’Connor has had to say about what the Establishment Clause prohibits:
“What is crucial is that a government practice not have the effect of communicating a message of government endorsement or disapproval of religion.”
“Just as government may not favor particular religious beliefs over others, ‘government may not favor religious belief over disbelief.’”
“We have time and again held that the government generally may not treat people differently based on the God or gods they worship, or don’t worship.”
“The Establishment Clause ‘prohibits government from appearing to take a position on questions of religious belief . . . .’”
“It [the Endorsement test] does preclude government from conveying or attempting to convey a message that religion or a particular religious belief is favored or preferred.”
That last quote is revealing. In its controversial ruling in Newdow v. U.S. Congress, the appeals court found that “under God” in the Pledge “is a profession of a religious belief, namely, a belief in monotheism.” So we should expect O’Connor to uphold the appeals court’s ruling, right? Maybe.
In the case of Wallace v. Jaffree, she wrote, “In my view, the words ‘under God’ in the Pledge and opening court sessions with ‘God save the United States and this honorable court’ . . . serve as an acknowledgment of religion with ‘the legitimate secular purposes of solemnizing public occasions, [and] expressing confidence in the future.’” What a curious thing to say.
In an earlier case, she wrote that such practices as, “the printing of ‘In God We Trust’ on our coins . . . serve, in the only ways reasonably possible in our culture, the legitimate secular purposes of solemnizing public occasions, expressing confidence in the future, and encouraging the recognition of what is worthy of appreciation in society. For that reason, and because of their history and ubiquity, those practices are not understood as conveying government approval of particular religious beliefs.” What happened to the prohibition against government even appearing to take a position on questions of religious belief, such as how many gods there are?
It’s far from certain that imprinting our coins with a motto that reveals an official belief in any number of gods tends to solemnize public occasions. Let’s say it does. Let’s say that reciting the Pledge of Allegiance solemnizes the occasion of a class of first-graders practicing their finger painting. Does solemnizing public occasions trump the prohibition against the government taking a stand on religious beliefs, a prohibition the court has honored since 1871 (in the case of Watson v. Jones)?
O’Connor also acknowledges the special nature of public schools. In Wallace, she addressed the issue of “state sponsored indoctrination” of religious beliefs in public schools, and the perceptions of “children in their formative years.” She agreed with the court’s opinion that the Establishment Clause prohibits, “government financed or government sponsored indoctrination into the beliefs of a particular religious faith,” and that, “government inculcation of religious beliefs has the impermissible effect of advancing religion.” She wrote, “This Court’s decisions have recognized a distinction when government-sponsored religious exercises are directed at impressionable children who are required to attend school, for then government endorsement is much more likely to result in coerced religious beliefs.”
In the Newdow case, what might she say about a pledge to monotheism that children recite day after day, year after year? Would she find that state laws requiring daily recital of the Pledge amount to government sponsored indoctrination in a religious belief? Maybe.
While Justice Rehnquist believes Jefferson’s “wall of separation between church and state” is a “misleading metaphor” that should be abandoned, Stevens seems to accept it, just as the court has since 1879. Just last year, in the case of Zelman v. Simmons-Harris, he wrote, “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.”
Stevens’ seems to think the Establishment Clause was meant to keep government and religion separate. His thinking is revealed by the quotes he uses from previous court rulings to support his opinions. Here’s a sampling:
“The ‘establishment of religion’ clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another.” (from Everson v. Board of Education, decided in 1947)
“The place of religion in our society is an exalted one, achieved through a long tradition of reliance on the home, the church and the inviolable citadel of the individual heart and mind. We have come to recognize through bitter experience that it is not within the power of the government to invade that citadel, whether its purpose or effect be to aid or oppose, to advance or retard. In the relationship between man and religion, the State is firmly committed to a position of neutrality.” (from Abington v. Schempp, decided in 1963)
“Neither [a State nor the Federal Government] can constitutionally pass laws or impose requirements which aid all religions as against non-believers, and neither can aid those religions based on a belief in the existence of God as against those religions founded on different beliefs.” (from Torcaso v. Watkins, decided in 1961)
“The law knows no heresy and is committed to the support of no dogma, the establishment of no sect.” (Watson v. Jones, decided in 1872)
Do these quotes argue it is appropriate for the Congress to enact laws based on a controversial religious belief? Or do they suggest it is not the business of government to promote religious beliefs, that government lacks the authority to judge the truth of religious beliefs?
Regarding the special nature of public schools, consider these excerpts from the court’s opinion, written by Stevens, in Santa Fe v. Doe:
“School sponsorship of a religious message is impermissible because it sends the ancillary message to members of the audience who are nonadherants ‘that they are outsiders, not full members of the political community, and an accompanying message to adherants that they are insiders, favored members of the political community.’”
“We explained in Lee [referring to the case of Lee v. Weisman] that the ‘preservation and transmission of religious beliefs and worship is a responsibility and a choice committed to the private sphere.’”
“Even if we regard every high school student’s decision to attend a home football game as purely voluntary, we are nevertheless persuaded that the delivery of a pregame prayer has the improper effect of coercing those present to participate in an act of religious worship. For ‘the government may no more use social pressure to enforce orthodoxy than it may use more direct means.’”
“As in Lee, ‘what to most believers may seem nothing more than a reasonable request that the nonbeliever respect their religious practices, in a school context may appear to the nonbeliever or dissenter to be an attempt to employ the machinery of the State to enforce a religious orthodoxy.’”
Based upon such comments as these, should we assume that Stevens will uphold the appeals court’s decision in Newdow? Maybe.
While Justice O’Connor has tried to refine the Lemon test, Justice Scalia agrees with Justice Rehnquist: get rid of the test. Consider these quotes from of Justice Scalia ’s opinions:
“I doubt whether that ‘purpose’ requirement of Lemon is a proper interpretation of the Constitution.” (from Edwards v. Aguillard)
“Our Religion Clause jurisprudence has become bedeviled (so to speak) by reliance on formulaic abstractions [e.g., the Lemon test] that are not derived from, but positively conflict with, our long-accepted constitutional traditions.” (from Lee v. Weisman)
“For my part, I agree with the long list of constitutional scholars who have criticized Lemon and bemoaned the strange Establishment Clause geometry of crooked lines and wavering shapes its intermittent use has produced.” (from Lamb’s Chapel v. Center Moriches School District)
The crooked lines he refers to are those the court has drawn to satisfy the purpose prong. While Justice O’Connor writes, “we cannot avoid the obligation to draw lines, often close and difficult lines, in deciding Establishment Clause cases,” and Justice Kennedy writes, “Our jurisprudence in this area is of necessity one of line-drawing,” Justice Scalia rejects all that and says that drawing these lines leads to such unreasonable results as nativity scenes on public property are sometimes constitutional, sometimes not.
Justice Scalia says the Lemon test has left it unclear what the Establishment Clause prohibits and what it allows. In one of his opinions, he put it this way:
“Our cases interpreting and applying the purpose test have made such a maze of the Establishment Clause that even the most conscientious governmental officials can only guess what motives will be held unconstitutional.” (from Edwards v. Aguillard)
In another opinion, Scalia mocked the test:
“As to the Court’s invocation of the Lemon test: like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again . . . .” (from Lamb’s Chapel v. Center Moriches School District)
Justice Scalia says he would replace the Lemon test with some other measure that maintains “fidelity to the longstanding traditions of our people.” Like Rehnquist, Scalia makes many references to tradition in Establishment Clause cases. Consider the case of Lee v. Weisman in which the court ruled it violated the Establishment Clause for public schools to have clerics lead prayers at graduation ceremonies. In his dissent, Scalia said the court’s decision, “lays waste a tradition that is as old as public school graduation ceremonies themselves.” He noted the, “longstanding American tradition of nonsectarian prayer to God at public celebrations,” and he said, “the longstanding American tradition of prayer at official ceremonies displays with unmistakable clarity that the Establishment Clause does not forbid the government to accommodate it.”
In short, if something has been allowed long enough, it must be constitutional; else, it would not have been allowed for so long. (We should be thankful that Scalia was not on the court when Brown v. Board of Education was decided.) This raises an interesting question: how long is long enough? 50 years? Another interesting question arises from Scalia’s comments: if longstanding traditions are inherently constitutional, how is it that longstanding court precedents – like the Lemon test – are to be mocked and dismissed?
One final observation about Scalia’s dissent in Lee v. Weisman. Scalia noted that the court’s decision meant that the current version of the Pledge is unconstitutional. Sarcastically, he said that finding the Pledge unconstitutional “ought to be the next project for the Court’s bulldozer.” Might that turn out to be a prophetic comment?
Justice Kennedy agrees with Justice Scalia that tests like the Lemon test or the new and improved Endorsement test yield “bizarre results” like making the existing national motto a violation of the Establishment Clause (as President Theodore Roosevelt warned when the idea was proposed), and invalidating traditional practices like opening sessions of the Supreme Court with a request that “God save the United States and this honorable Court.”
Consider the case of Allegheny County v. ACLU where the court found that a nativity scene in a county courthouse violated the Establishment Clause. Kennedy took the opportunity to discuss the application of such tests to the current version of the Pledge. He wrote that, “it borders on sophistry to suggest that the ‘reasonable’ atheist would not feel less than a ‘full member of the political community’ every time his fellow Americans recited, as part of their expression of patriotism and love for country, a phrase he believed to be false.” Given the “bizarre results” that come from these tests, he said he’d rather take the strict separationist view: let’s just eliminate all religious displays on public property and be done with it.
In Allegheny, Kennedy said the local community should decide what are appropriate displays for a religious holiday: “In my view, the principles of the Establishment Clause and our Nation’s historic traditions of diversity and pluralism allow communities to make reasonable judgments respecting the accommodation or acknowledgment of holidays with both cultural and religious aspects. No constitutional violation occurs when they do so by displaying a symbol of the holiday’s religious origins.”
This raises some interesting questions. What if the local community happens to be New York City, a community with many different cultural and religious groups? Kennedy’s prescription may work if the entire community belongs to one religion, but what about real communities? What about religious minorities in real communities? Consider the situation of a Catholic family living in a predominantly Muslim community. The children attend public school in the community. What are they to do when the teacher leads the class in a pledge to “one nation under Allah?” What are they to do when the class breaks for afternoon prayers?
Like Scalia, Kennedy feels that Establishment Clause rulings lack consistency. He says the court’s rulings should be consistent with “historical practices that, by tradition, have informed our First Amendment jurisprudence.” In Kennedy’s opinion, no matter what test the court uses in Establishment Clause cases, “the reference to God in the Pledge of Allegiance . . . the Court will not proscribe.” But he gives no reason at all for such a refusal. Is there something in the Constitution that says any practice that’s been accepted for X number of years is exempt from constitutional scrutiny? If so, what is the value of X? If it is 50 years, then the appeals court’s decision can be upheld only if the court decides the Newdow case before Flag Day, 2004. After that, it becomes exempt (the act adding “under God” to the Pledge was signed into law by President Eisenhower on Flag Day, 1954).
Consider another quote from Kennedy:
The First Amendment’s Religion Clauses mean that religious beliefs and religious expression are too precious to be either proscribed or prescribed by the State. The design of the Constitution is that preservation and transmission of religious beliefs and worship is a responsibility and a choice committed to the private sphere, which itself is promised freedom to pursue that mission.
How does that jive with a refusal to proscribe the “reference to God in the Pledge of Allegiance?” If the state cannot prescribe religious beliefs, shouldn’t the appeals court’s decision be upheld? Shouldn’t Congress be barred from passing laws that endorse controversial religious beliefs?
Like O’Connor and Stevens, Kennedy considers the special nature of public education. Consider these excerpts from his opinions:
“No holding by this Court suggests that a school can persuade or compel a student to participate in a religious exercise. That is being done here, and it is forbidden by the Establishment Clause of the First Amendment.” (from Lee v. Weisman)
“The injury caused by the government’s action, and the reason why Daniel and Deborah Weisman object to it, is that the State, in a school setting, in effect required participation in a religious exercise.”
“. . . we think the State may not, consistent with the Establishment Clause, place primary and secondary school children in this position [of participating in a religious exercise unwillingly, or of protesting].”
“What to most believers may seem nothing more than a reasonable request that the nonbeliever respect their religious practices, in a school context may appear to the nonbeliever or dissenter to be an attempt to employ the machinery of the State to enforce a religious orthodoxy.”
How will Kennedy vote in the Newdow case? Hard to tell. Judging from his opinions, he could go either way. His decision might depend on the arguments presented by Newdow and by those arrayed against him: the United States, the attorneys general of 50 states, a number of religious rights organizations, a school district, and public opinion.
In Lee v. Weisman, Justice Souter agreed that “prayers at public school graduation ceremonies indirectly coerce religious observance” and that violates the Constitution. If hearing a prayer at a high school graduation ceremony is coercion, what is it to be required by state law to recite a Pledge to one nation under one god, day after day, for 12 years?
Consider these excerpts from Souter’s opinions about the rights of non-believers, such as Newdow:
“The First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion.”
“. . . neither a State nor the Federal Government . . . can constitutionally pass laws or impose requirements which aid all religions as against non-believers . . . .”
“The State may not favor or endorse either religion generally over nonreligion or one religion over others.”
“. . . the political interest in forestalling intolerance extends beyond intolerance among Christian sects – or even intolerance among ‘religions’ – to encompass intolerance of the disbeliever and the uncertain.”
“The Establishment Clause applies ‘to each of us, be he Jew or Agnostic, Christian or Atheist, Buddhist or Freethinker.’”
Anyone who thinks that listening to a prayer at a high school graduation ceremony is an unconstitutional form of coercion is sure to find that having to recite a pledge acknowledging there’s only one god, and doing it over 2,000 times before graduation, is a much more serious form of coercion, right? So, Souter will certainly vote to uphold the appeals court’s ruling.
What does the Establishment Clause mean to Justice Thomas? Consider his opinion in Rosenberger v. University of Virginia, where he commends the view that, “the Framers saw the Establishment Clause simply as a prohibition on governmental preferences for some religious faiths over others.” This is pretty much the same view advanced by Rehnquist in Wallace v. Jaffree. We should expect Thomas to rule against a law that prefers some faiths over others, right? Of course not.
Speculating as to what James Madison intended by the Establishment Clause, Thomas wrote, “Madison saw the principle of nonestablishment as barring governmental preferences for particular religious faiths.” From that, we can conclude that Thomas will vote to uphold the appeals court’s decision as it prefers particular religious faiths, i.e., those that hold there is but one god? Nope. Thomas votes with Rehnquist and Scalia when it comes to Establishment Clause cases. All three will vote to overrule the appeals court’s ruling.
Justice Ginsburg hasn’t had much to say about what the Establishment Clause allows and prohibits, exactly what the Founders meant by it, how our national heritage fits into all of this, or whether Ceremonial Deism is a valid legal concept, but in these cases, she always votes the opposite of Rehnquist, Scalia, and Thomas. If they vote to uphold the existing Pledge, she’ll vote against it.
The newest member of the court offers some revealing comments in his dissenting opinion in Zelman v. Simmons-Harris, an opinion that was joined by Justices Souter and Stevens. Consider these comments from that opinion:
“The First Amendment begins with a prohibition, that ‘Congress shall make no law respecting an establishment of religion,’ and a guarantee, that the government shall not prohibit ‘the free exercise thereof.’ These Clauses embody an understanding, reached in the 17th century after decades of religious war, that liberty and social stability demand a religious tolerance that respects the religious views of all citizens, permits those citizens to ‘worship God in their own way,’ and allows all families to ‘teach their children and to form their characters" as they wish.’”
“The upshot [of 20th-century Establishment Clause cases] is the development of constitutional doctrine that reads the Establishment Clause as avoiding religious strife, not by providing every religion with an equal opportunity (say, to secure state funding or to pray in the public schools), but by drawing fairly clear lines of separation between church and state – at least where the heartland of religious belief, such as primary religious education, is at issue.”
“In a society as religiously diverse as ours, the Court has recognized that we must rely on the Religion Clauses of the First Amendment to protect against religious strife, particularly when what is at issue is an area as central to religious belief as the shaping, through primary education, of the next generation’s minds and spirits.”
Newdow can argue that the existing Pledge deprives him of his right to raise his daughter as he wishes, that the state is competing with him when it comes to his daughter’s religious upbringing. If he makes that argument before the court, look for Bryer to vote in Newdow’s favor.
So, how will the Supreme Court rule in the matter of Newdow v. U.S. Congress? If the court relies on the Lemon test, it has little choice but to uphold the appeals court’s ruling. After all, what was the purpose behind the act that added “under God” to the Pledge? Could the court decide that a law designed to distinguish the (godly) people of the U.S. from the (godless) communists of the U.S.S.R. has a legitimate secular purpose, that it does not tend to establish monotheism as an official national belief, that it does not make atheists, agnostics, and Hindus feel like outsiders, or that its daily recitation by children in public school is not state-sponsored religious indoctrination? Perhaps.
The court could agree with Solicitor General Ted Olson. In his appeal to the court to hear the Newdow case, he argued that adding “under God” to the Pledge was simply “an acknowledgement of our religious heritage.” He argued that ceremonial references to a particular god acknowledge, “the undeniable historical facts that the Nation was founded by individuals who believed in God.” He said that the phrase “under God” in the Pledge simply serves to describe the U.S. as a nation, “founded by individuals who believed that the Nation's character and destiny were rooted in the Divine.”
The court could agree with all that, but it would have to turn a blind eye to the reality of the situation: the Pledge recited in public school classrooms each day refers to this as a nation that is currently “under God,” not as, “one nation, founded by people who believed in a particular god.”
The court could overrule the appeals court by concluding that the Pledge is no more of an affront to the Establishment Clause than is the national motto, which claims that we trust in one god.
The court has used the no-more-of argument in previous cases. In Marsh v. Chambers, the court ruled that using taxes to pay for legislative chaplians was not a violation of the Establishment Clause since it has no more potential for establishment of religion than tax exemptions for religious organizations. In that case, the dissent noted that the practice failed the Lemon test.
In Lynch v. Donnelley, the court ruled that a nativity scene on public property did not violate the Establishment Clause because it was no more of an endorsement of religion than other government activities, like printing the national motto on our currency. Again, the dissent noted that the practice failed the Lemon test.
In Lynch, one justice suggested a new rationale, lacking any constitutional basis, for justifying references to a god in the Pledge and in the national motto. The rationale was called Ceremonial Deism. According to this rationale, the reference to a god in the Pledge has, “lost through rote repetition any significant religious content.”
The court could rely on the concept of Ceremonial Deism to overrule the appeals court. It could rule that “under God” has no religious significance. But that’s quite a stretch.
Here’s a likely scenario for a ruling from the Supreme Court in case of Newdow v. U.S. Congress. Rehnquist, Scalia, and Thomas will vote to overrule the appeals court. They’ll use the concept of “tradition” to justify their reasoning. If a practice has been allowed for so long, it must be constitutional, else it would not have been allowed for so long.
Ginsburg will vote to uphold the appeals court’s ruling. She leans toward a literal interpretation of the Constitution, and so she’s no more likely to find support for Ceremonial Deism in the First Amendment than she’s likely to find support for abortion rights in the Fourteenth Amendment.
Souter will vote with Ginsburg. He’s never signed on to the notion of Ceremonial Deism. If he finds that listening to a prayer at a high school graduation ceremony is an unconstitutional form of coercion, he’s sure to find that reciting a pledge to one god, and doing it over 2,000 times before graduation, is a much more serious form of coercion.
Breyer will join with Ginsburg and Souter. He understands that our society is religiously diverse, that social stability demands religious tolerance, and that parents should be allowed to teach their children their religion without government interference.
Stevens will also vote to uphold the appeals court’s ruling. Anyone who thinks that the transmission of religious beliefs is not the government’s responsibility is sure to vote against an official Pledge that promotes a religious belief.
So far, that’s three for overruling the appeals court’s ruling, and four for upholding the ruling. What about the remaining two justices, Kennedy and O’Connor?
If Kennedy can be persuaded that the Pledge uses the “machinery of the State” to promote a religious belief, he’ll vote to uphold the appeals court’s ruling.
Justice O’Connor is in the toughest position. She’s already said that the Pledge doesn’t violate the Establishment Clause because it solemnizes public occasions. But she’s also said that the government can’t even appear to take a position on religious beliefs (such as how many gods there are and what their relation is to the U.S.). Can she square those two notions? Can she argue that the Pledge solemnizes a class full of third-graders each morning? Can she argue that, whatever the Establishment Clause forbids and allows, solemnity is more important, that there are exceptions to the Constitution?
Look for a six-to-three ruling (Kennedy and O’Connor joining Ginsburg, Souter, Breyer, and Stevens) to uphold the appeals court’s ruling unless the court adopts Ceremonial Deism. In that case, look for a five-to-four ruling (Kennedy and O’Connor joining Rehnquist, Scalia, and Thomas) that upholds tradition and satisfies a public that strongly favors leaving the Pledge as is.
Click here for Part I.
Click here for other articles by Mister Thorne.
Click here for Mister Thorne’s Religion in the News.
About the Author: Mister Thorne is a writer living in San Francisco. For information about him, visit www.misterthorne.org. To contact him, send e-mail to mister.thorne@sbcglobal.net.