The Newdow case: StrictSeparationist vs. James Madison

[KnightWhoSaysNi]

This thread has been set up for a formal debate between StrictSeparationist and James Madison on the following resolution:

Resolved: that Newdow v. U.S. Congress, 292 F.3d 597 (9th Cir. 2002), as amended February 28, 2003, was correctly decided.

StrictSeparationist will go first, taking the affirmative and James Madison will oppose. The debate will go for 5 rounds as agreed to from the parameters (http://www.iidb.org/vbb/showthread.php?t=85571).

Since StrictSeparationist is a participant in addition to being a moderator in the formal debate fora, he has agreed to recuse himself from moderating this particular formal debate.

A Peanut Gallery (http://www.iidb.org/vbb/showthread.php?p=1620647#post1620647) is set up in the Church/State Separation forum for the rest of us to comment on the debate.

Good luck to both participants!

Jason

[StrictSeparationist]

Before I begin, I'll thank James Madison for participating in this debate, and IIDB for hosting it. Also, for anyone who wishes to read the text of the decision under discussion, the original, three-judge panel decision can be found here (http://news.findlaw.com/hdocs/docs/conlaw/newdowus62602opn.pdf), and the later decision to deny en banc review, along with several concurrences and dissents, can be found here (http://www.ca9.uscourts.gov/ca9/newopinions.nsf/1AC18E7FEB98DB6D88256CDB000AFCF4/$file/0016423.pdf?openelement). Both are PDFs. Unfortunately, I have never seen the specific amendments made to the original panel's decision, but their substance was nullifying that part of the decision that invalidated Pub. L. No. 396, Ch. 297 (1954), (hereinafter the "1954 Act") and limited the rationale to the school district's policy of mandating teacher-led recitation of the Pledge at the beginning of each school day. The 1954 Act and its constitutionality obviously don't fit into the topic this debate began under.

To provide a little background for those who are perhaps not familiar with all the ins and outs of this litigation: on March 8, 2000, Michael A. Newdow filed suit under 42 U.S. §1983 in the U.S. District Court for the Eastern District of California, alleging, among other things, that the recitation of the Pledge of Allegiance with the phrase “under God� in schools of the Elk Grove Unified School District and the congressional act adding those words to the Pledge violated his rights under the Establishment Clause and the Free Exercise Clause of the First Amendment. On July 21, 2000, his case was dismissed.

On June 26, 2002, a three-judge panel of the 9th Circuit Court of Appeals reversed the district judge, holding that the 1954 Act and the local school district’s policy of requiring teacher-led Pledge recitation at the start of each school day did indeed violate the First Amendment. Judge Goodwin, in his majority opinion, declared that

“A profession that we are a nation ‘under God’ is identical, for Establishment Clause purposes, to a profession that we are a nation ‘under Jesus,’ a nation ‘under Vishnu,’ a nation ‘under Zeus,’ or a nation ‘under no god,’ because none of these professions can be neutral with respect to religion.�

On February 28, 2003, an en banc panel of the 9th Circuit refused to rehear the case, although it did order it amended such that the decision was only applicable to the school district’s policy, and not to the 1954 Act of Congress.

On October 14, 2003, the United States Supreme Court granted certiorari to resolve whether or not the school district policy violated the First Amendment. On March 24, 2004, the Court heard oral arguments in 02-1624, Elk Grove Unified School Dist v. Newdow. A decision is expected late this month or early next month. We are here to try and determine whether the 9th Circuit was legally correct in holding that public school recitation of the Pledge with the theistic phrase included violates the First Amendment.

Let's begin with the three-part test set out in Lemon v. Kurtzman, 403 U.S. 602 (1971). In order to pass Lemon muster, a challenged program must have a secular purpose[1], have a primary effect that neither advances nor inhibits religion, and may not foster an excessive government entanglement with religion. The first and third prongs have little relevance to the school district's policy; certainly recitation of the Pledge does achieve a valid patriotic, secular purpose, and there is virtually no entanglement as a result of the presence of the phrase "under God." The second prong, then, is where analysis properly begins.

The primary effect prong traces its heritage back to Abington School Dist. v. Schempp, 374 U.S. 203 (1963), where Justice Clark, for the Court, asked:

"[W]hat are the purpose and the primary effect of the enactment? If either is the advancement or inhibition of religion then the enactment exceeds the scope of legislative power as circumscribed by the Constitution. That is to say that to withstand the strictures of the Establishment Clause there must be a secular legislative purpose and a primary effect that neither advances nor inhibits religion." 374 U.S. at 222.

Of course Abington, its sister case Murray v. Curlett, and their predecessor, the watershed Engel v. Vitale, 370 U.S. 421 (1962), all stand for the proposition that religion may not receive official government sponsorship, particularly when the context is that of the public schools. With these values informing its Lemon analysis, then, the 9th Circuit panel correctly concluded that a school district policy of requiring that each school day begin with a pledge to country, flag, and deity has the forbidden effect of advancing religion. Clearly, this advancement is not in the form of financial aid or other direct assistance, rather, the problem is the placing of the state’s imprimatur on a profession of faith in a single supreme being.

The defense most often raised in connection with this point is that because no deity is specified, the words “under God� can be stretched to apply to any deity, any religious belief system at all. This argument is effectively neutralized by the Congressional records available from 1954, showing a clear Judeo-Christian bias in the insertion of the “under God� phrase. More importantly, it ignores the position of atheists, who are a small but not inconsequential minority in this country. Put simply, “under God� can never mean “under no God.� That would be an absurdity. I’ve also never seen a serious argument showing how this clearly monotheistic statement can be expanded to include polytheistic religions, or those who worship not a deity, but, for example, the plant Earth itself. The greatest error, however, is in assuming that even if this phrase could be proven to include all conceivable forms of worship, that would preclude an Establishment Clause violation. A quote from that most famous dictum in Everson illustrates the point nicely: “The 'establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government… can pass laws which aid one religion, aid all religions, or prefer one religion over another.� 330 U.S. at 15. Emphasis added.

Per Lemon’s implicit formulation, a challenged program’s failure to pass any one of the three prongs constitutes grounds for invalidation. Thus, we may conclude from this alone that the Elk Grove Unified School District’s policy is unconstitutional. However, for the sake of completeness, it is useful to also analyze the policy under the other main Establishment Clause tests that have been set out over the years.

The second Establishment Clause test that requires attention is Justice O’Connor’s “endorsement or disapproval� formulation from Lynch, which I mentioned before. In context, the Justice’s thoughts on the Establishment Clause in her Lynch concurrence are a powerful argument against the monotheistic component of the Pledge:

“The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person's standing in the political community…The second and more direct infringement is government endorsement or disapproval of religion. Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community. Disapproval sends the opposite message.� 465 U.S. at 688-9.

In a case that is perhaps more relevant to an inquiry into the 1954 Act, Wallace v. Jaffree, 472 U.S. 38 (1985), the Court did conclude that a law that added an obvious encouragement of silent prayer to an existing statute allowing a moment of silent reflection at the beginning of the school day conveyed an endorsement of religion, and that it is necessary to pursue that inquiry “whenever the State itself speaks on a religious subject.� 472 U.S. at 60-1. Here, the State clearly spoke in the original Congressional action, and continues to speak through laws requiring recitation of a phrase that is clearly an opinion on the question of the existence of a god or gods. It is thus necessary to ask whether or not that opinion conveys a sentiment that cannot come from the sovereign in comportment with the First Amendment.

Certainly there appears to be no better way to send a message to religious believers that they are political and societal insiders than by insinuating that only by holding their particular faith can a person be a good citizen of this nation, nor a better way to convince atheists and other religious dissidents that their government considers them to be in error than by inserting a religious message into an oath that is theoretically intended to unite all as one people, undivided by religion. By taking sides in what ought to be a personal and private matter, the government violates the precious “neutrality� that accommodationists are wont to sing the praises of when it benefits religious organizations.

Another important Establishment Clause test to be considered is the coercion test of Lee v. Weisman, 505 U.S. 577 (1992). Justice Kennedy’s majority opinion puts it thusly:

“As we have observed before, there are heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools. Our decisions in [Engel] and [Abington], recognize, among other things, that prayer exercises in public schools carry a particular risk of indirect coercion. The concern may not be limited to the context of schools, but it is most pronounced there. 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.� 505 U.S. at 592. Citations omitted.

The Court has, as Justice Kennedy remarks, always exhibited a special concern for church-state separation in the public schools.[2] Since its first decision striking down a school-related religious encroachment in McCollum v. Board of Education, 333 U.S. 203 (1948), the Court has frequently acted to ensure that pupils in public schools are not subjected to State attempts to impose a particular belief system or merely religious ideology in general on them. Lee was a continuation of this tradition, and there is no reason why the concept should not be extended to Newdow. An atheistic student will almost certainly feel a certain amount of peer and societal pressure to pledge allegiance to an entity he believes to be nonexistent. As the original 9th Circuit decision put it, “…the phrase ‘one nation under God’ in the context of the Pledge is normative.�

A distressingly common counterargument is that the fact that no school district can require a student to recite the Pledge per the Court’s holding in West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943). During oral arguments at the Supreme Court, this glaringly deficient argument was advanced several times, most significantly by Justices O’Connor and Ginsburg.

Of course the problem with this is that both women are forgetting Justice Frankfurter’s McCollum admonishment that “nonconformity is not an outstanding characteristic of children.� (333 U.S. at 227.) That famous dictum was made law in Engel and reinforced in Abington. In the former, the majority opinion remarks that

“When the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain.� 370 U.S. at 431.

In the latter, though the prayer and Bible-reading exercises were concededly voluntary, the Court found that no barrier to holding both to be violations of the First Amendment. The apparent views of Justices O’Connor and Ginsburg, then, are not only unsupported by case law, but are in fact decisively refuted by some of the Court’s most venerable Establishment Clause decisions.

The Pledge of Allegiance, as amended by the 1954 Act, forces a nonbelieving student to choose between his or her personal principles and beliefs and possible social ostracism. It strongly implies that patriotism is equivalent in some functional way with monotheism, or at least that the former necessarily involves the latter. It is inconsistent with nearly sixty years worth of Supreme Court precedent. Most importantly, it violates the principles of religious liberty and inclusiveness that this nation was supposedly founded on. The phrase’s future is unclear to say the least, but I hope that any open-minded, rational observer will conclude that it ought to be removed, whether one views the matter from a legal or moral perspective.




[1] Some have postulated that Justice O'Connor's famous concurrence in Lynch v. Donnelly, 465 U.S. 668 (1984), at 687, in which she sets out the "endorsement or disapproval" test, represents a modification or replacement of Lemon's secular purpose and/or advancement or inhibition prong. For the purposes of this debate, and unless James Madison chooses to contest it, I will assume that O'Connor's idea actually represents a separate test.

[2] Indeed, this impulse is so strong that even as the conservative Rehnquist Court seems intent on tearing down the wall of separation in certain areas (see, e.g., Rosenberger v. University of Virginia, 515 U.S. 819 (1995) and Zelman v. Simmons-Harris, 536 U.S. 639 (2002)) a firm 6-3 majority recently barred a Texas school district from authorizing prayers at football games. Santa Fe Indpt. School Dist. v. Doe, 530 U.S. 290 (2000).

[KnightWhoSaysNi]

Due to circumstances beyond James Madison's control, he has requested that his statement deadline be extended to June 10th. I have agreed to grant his request.

Jason

[James Madison]

First I'd like to thank Strict Separationist for the opportunity to participate in this discussion. I would also like to thank him and the rest of the staff for the warm hospitality they have shown me. Unfortunately, due to my busy court schedule, trial schedule, and other ongoings of life, my reply will be much briefer than Strict Separationist and much less of a reliance upon case law. However, future posts will draw upon relevant case law, I guarantee and promise it.

The case Elk Grove Unified School Dist v. Newdow is certainly going to be a landmark decision for the U.S. Supreme Court. In my opinion the question is a very simple one. Does the Pledge of Allegiance (from now known as POA) with the words Under God in it violate the Establishment Clause of the First Amendment or does the POA fall into one of the exceptions? This is in my opinion the only relevant inquiry at this point. If the POA did not include the phrase "Under God," in it, then we would have not case and controversy. Hence, the application of the tripartite lemon test should be applied to Congressional act insterting the words "Under God," in the pledge and not the action or conduct of the school district. Finally, the U.S. Supreme Court has carved out a prolethra of exceptions to the Establishment Clause and it is my contention the POA and the act inserting the words "Under God," into the POA are constitutional.

The three part test of Lemon v. Kurtzman, 403 U.S. 602, has most commonly been associated with funding cases. In fact, it was a test formulated through a series of funding cases. Application of it to non-funding cases has proven to be a headache for the U.S. Supreme Court. This would explain why so many different and alternate tests have been developed by some members of the U.S. Supreme Court and applied in addressing non-funding Establishment clause issues as opposed to relying on the Lemon test.

The three part test asks whether the program at issue has a secular purpose, whether the primary effect is neither to advance nor to inhibit religion, and whether the legislation fosters an "excessive government entanglement with religion." It is important to note that the case could be decided without even applying the tripartite test espoused in Lemon v. Kurtzman. However, the three prong test of Lemon may not be be applicable if the POA can be immediately found to fall into one of the exceptions noted by Justice O'Connor in her concurring opinion of Lynch v. Donnelly,465 U.S. 668. Or if the rationale of Marsh v. Chambers, 463 US 783, and the reasoning of Lynch v. Donnelly can be extended to the instant case. Both cases are instances where religion was accommodated by the U.S. Supreme Court.

However, I will contend application of the Lemon test to the POA or the act resulting in the current POA does not warrant a finding that the Establishment clause has been violated.

First of all it is important to note that much of the evidence used thus far really goes to the first prong of the Lemon test and not the second. The first prong of the lemon test asks whether or not the legislation has a secular purpose. Much of the evidence referenced to thus far really speaks to the first prong of lemon as opposed to the second prong of lemon, which asks whether the primary effect is neither to advance nor to inhibit religion. The reason for this is because there is an evidentiary problem in proving the POA, rather the legislation which incorporated the phrase "Under God," has the primary effect of advancing religion. In funding cases this evidentiary problem was solved by simply following the trail of money and then asking what the money was spent on or what the money was used for. In the instance case we do not have the luxury of such enlightening evidence. Seeking to demonstrate the legislation has the primary effect of advancing religion is an arduous task to prove. How can it be proven the inclusion of the words "Under God," has had the primary effect of advancing religion? Has it led to an influx of converts to a particular religion after reciting the pledge?

The argument this is an instance of the state's endorsement of a profession of faith in a single supreme deity is a valid one. However, instances where the state acknowledges and calls upon divine aid is not unconstitutional, as was the case in Marsh v. Chambers. So long as it is not done to demonstrate a preference for one religion over another, or as an attempt to establish a national religion, then this may be too ambiguous of a reference or preference to religion.

However, another perspective is as as Justice O'Connor noted in her concurrence in Lynch v. Donnelly,government declaration of Thanksgiving as a public holiday, printing of "In God We Trust" on coins, and opening court sessions with "God save the United States and this honorable court." Those government acknowledgments of religion 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 **1370 beliefs. The display of the crèche likewise serves a secular purpose--celebration of a public holiday with traditional symbols. It cannot fairly be understood to convey a message of government endorsement of religion. No reasonable person would understand the POA as anything more than a patriotic hymn, as anything more than expressing hope in the future of this nation, confidence in the future of this nation, and recognizing what is worthy of appreciation in our society, such as this grand Republic.

With this said it is important to note the students are pledging allegiance to the United States of America and not a supreme deity. The argument the atheistic student or parent will feel certain pressure to pledge an allegiance to a deity is misplaced since the pledge itself is to the nation and not a deity. Furthermore, if the POA is construed as nothing more than a pledge to this nation, a hope in the future of this country, an act of patriotism, which it most certainly is, as opposed to an expression in religious belief, then the atheists argument loses some of its swagger.

Hence, I think the evidence for the second prong of lemon is not very compelling. The evidence for the first prong of lemon is just as problematic.

The first prong asks whether or not the program has a secular purpose. The evidence that goes to this prong is the alleged and supposed Congressional records regarding the 1954 Act. The difficulty in relying upon this evidence, however, is the fact not every member of Congress formally expressed what intent they had in passing this law. The difficulty is more likely than not there was not even a majority of Congressman on the record expressing their motives as to why the law was passed. All we have is a statement by a member of the House and some vague reference to the hearings. As Justice Scalia noted in his book A Matter of Interpretation there is very rarely a complete legislative record. Most of the time the legislative record consists of only what a few Congressman and women have said and not the majority. It is therefore, a little deceiving to suggest we have the "intent" or the "purpose" of the Congress before us by relying upon only a few members.

This case seems to fit, as I have already mentioned, into the reasoning and rationale of Marsh v. Chambers and Lynch v. Donnelly. The pledge has been recited for the last 50 years with an increasing understanding in the successive years the POA was patriotic as opposed to religious. It has also been understood the POA is a pledge to this nation, to this Republic, and not to some deity. The POA is recited for no other reason than out of habit and ritual. The Ninth Circuit even admitted in its own opinion that school districts around the country had rules regarding recitation of the pledge, Elk Grove Unified School Dist. v. Newdow. The POA was recited for no other reason than ritualistic and patriotic reasons before inclusion of the phrase, "Under God," and remained the case after inclusion of the POA. Nor did the inclusion of the phrase, "Under God," alter these facts.

[StrictSeparationist]

The case Elk Grove Unified School Dist v. Newdow is certainly going to be a landmark decision for the U.S. Supreme Court. In my opinion the question is a very simple one. Does the Pledge of Allegiance (from now known as POA) with the words Under God in it violate the Establishment Clause of the First Amendment or does the POA fall into one of the exceptions? This is in my opinion the only relevant inquiry at this point. If the POA did not include the phrase "Under God," in it, then we would have not case and controversy. Hence, the application of the tripartite lemon test should be applied to Congressional act inserting the words "Under God," in the pledge and not the action or conduct of the school district.

The three-judge panel was in partial agreement with you. The majority there analyzed both the Act of Congress and the school district policy using all relevant Establishment Clause inquiries, namely Lemon, endorsement or disapproval, and, with regard to the school district policy only, coercion. However, the en banc panel felt that the decision ought to rest on an invalidation of the school district policy alone. Technically, then, discussion of the 1954 Act does not fall into the resolution of our debate, that the decision “as amended February 28, 2003� was and is legally sound. That’s why I did not include argument on the 1954 Act in my opening statement, because it was not within the topic and because I feel that the weight of the legal evidence against the Act is simply overwhelming. However, because you’ve “opened the door,� so to speak, I’ll briefly lay out my case against the 1954 Act here.

That case can comfortably begin and end with a single case, Wallace v. Jaffree, 472 U.S. 38 (1985). A 6-3 majority invalidated an Alabama statute that amended a previous moment of silence law. The original law provided for a minute of silence “for meditation.� The amendment inserted the words “or voluntary prayer� after “meditation.� The Court held that the amendment lacked a secular legislative purpose, thus violating the first prong of the Lemon test.

Rarely does a case of such factual and legal similarity to an instant issue present itself, but it clearly has with regard to the 1954 Act. There is simply no defense to Wallace so long as it is regarded as good law, and there is no reason to believe it is not.[1] Scrutiny under various other tests is similarly unpromising for “under God� advocates—the phrase clearly fails the advancement or inhibition prong of Lemon, for it certainly does further the cause of religion generally and monotheism particularly to throw the whole weight of the United States government behind a declaration that we are a nation that affirms the existence of some deity or deities. Similarly with O’Connor’s “endorsement or disapproval� test, for much the same reasons that I outlined with regard to the school district policy in my opening statement.

There are, of course, some distinctions that come to mind when one lays Wallace and Newdow side by side. The chief difference is that, interestingly enough, the statutes under review in Wallace may well have been constitutional if enacted simultaneously, rather than having one amend the other, while the time gap in Newdow is insignificant, given that the constitutional offense was making an affirmative statement that a single deity exists and is somehow involved in the affairs of our nation, in violation of the principle of government neutrality towards religious ideas. Because voluntary prayer is well within the rights of students and teachers in a public school setting, the Alabama legislature’s codification of that right would not have changed the legal situation While this may seem only an example of the inconsistency and arbitrariness that an untrained eye might see in the Supreme Court’s Establishment Clause jurisprudence, it is actually a sensible result. By setting voluntary prayer on a pedestal by enacting it separately from the rest of the moment of silence statute, the legislature clearly adopted a posture of endorsing that particular activity. Such a message cannot be sent consistent with the First Amendment.

Finally, the U.S. Supreme Court has carved out a plethora of exceptions to the Establishment Clause and it is my contention the POA and the act inserting the words "Under God," into the POA are constitutional.

The Supreme Court has carved out a couple of highly fact-sensitive exceptions to its general Establishment Clause jurisprudence. The phrase at issue does not readily fit into either of them.

The three part test of Lemon v. Kurtzman, 403 U.S. 602, has most commonly been associated with funding cases. In fact, it was a test formulated through a series of funding cases. Application of it to non-funding cases has proven to be a headache for the U.S. Supreme Court. This would explain why so many different and alternate tests have been developed by some members of the U.S. Supreme Court and applied in addressing non-funding Establishment clause issues as opposed to relying on the Lemon test.

While it is true that Lemon was a funding case, its requirements were not invented out of whole cloth by then-Chief Justice Burger. Rather, the three prongs were, as he said, “gleaned from [Supreme Court] cases.� 403 U.S. at 612. As I demonstrated in my first post, the lineage of the first and second prongs can be traced all the way back to Abington, which was most decidedly not a funding case. In fact, it was one of the watershed decisions against state-sponsored religion in the public schools, so it remains very relevant to the issues presented in Newdow. The entanglement prong was indeed conceived in a “funding� case—Walz v. Tax Commission, 397 U.S. 664 (1970), and has its main application in funding-related cases. Obviously, however, I’m not relying on that prong in any event.

The three part test asks whether the program at issue has a secular purpose, whether the primary effect is neither to advance nor to inhibit religion, and whether the legislation fosters an "excessive government entanglement with religion." It is important to note that the case could be decided without even applying the tripartite test espoused in Lemon v. Kurtzman.

I suppose it depends on your point of view. If you’re a Supreme Court Justice with four of your colleagues behind you, the law is at your mercy. State decisis, like many other purely prudential considerations, is entirely voluntary when you sit on the court of last resort. However, I would argue that a judge sitting at the circuit or district level (or any level at all in the state system) does not have the freedom to simply disregard Lemon, or, for that matter, any other Establishment Clause test that has received the sanction of a Supreme Court majority. Clearly, my idealized legal world, wherein judges recognize that precedent from a higher court is legally binding unless and until that court overrules the precedent, strays somewhat from reality, where those who would relegate Lemon to the dustbin of history are distressingly common. Due to a failure of assertiveness from the Supreme Court, the status quo is a situation in which one only applies Lemon if one wishes to invalidate the challenged program or statute. Accommodationist judges know that it is far easier to reach a religion-friendly result if one does not require an enactment to run the Lemon gauntlet.

However, the three prong test of Lemon may not be applicable if the POA can be immediately found to fall into one of the exceptions noted by Justice O'Connor in her concurring opinion of Lynch v. Donnelly,465 U.S. 668. Or if the rationale of Marsh v. Chambers, 463 US 783, and the reasoning of Lynch v. Donnelly can be extended to the instant case. Both cases are instances where religion was accommodated by the U.S. Supreme Court.

I’ll deal with Marsh and Lynch separately, beginning with the latter. Here is the key paragraph in O’Connor’s Lynch concurrence:

“These features combine to make the government's display of the crèche in this particular physical setting no more an endorsement of religion than such governmental "acknowledgements" of religion as legislative prayers of the type approved in Marsh v. Chambers, 463 U.S. 783 (1983), government declaration of Thanksgiving as a public holiday, printing of "In God We Trust" on coins, and opening court sessions with "God save the United States and this honorable court." Those government acknowledgments of religion 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.� 465 U.S. at 692-3.

Instantly, a key phrase leaps out at us. “[L]egitimate secular purpos[e].� That clues the careful observer in that far from acting outside the bounds of Lemon, O’Connor is in fact embracing its three-prong framework, and trying to explain how her examples pass its muster. I believe that to be a profoundly misguided effort. It appears to be some sort of version of the (in)famous “ceremonial deism� argument that is often trotted out in an attempt to convert overtly religious government-sponsored content into meaningless ritual. In the case of the Pledge, the way of ceremonial deism is made more difficult by looking at the time gap between the original enactment and the legal examination of that enactment (a bare fifty years). This is hardly comparable to the centuries-long pedigree of several of the practices O’Connor mentions, and strongly suggests that the plainly religious message inserted into the Pledge in 1954 is still there today. The effort to pass “under God� off as a harmless rite is further hindered by the enormous public outcry on the occasion of the Ninth Circuit’s original ruling that the Pledge violated the Establishment Clause. The two representative branches of government issued public declarations repudiating the decision. It is hard to keep a straight face in the shadow of this evidence when one attempts to assert that “under God� has lost its significance.

Marsh was, of course, the legislative chaplain case, in which the Supreme Court upheld the challenged practice without resort to Lemon. Marsh has been carefully limited such that any precedential value it may have cannot apply in a public school context. The language of Marsh itself supports this conclusion:

“Here, the individual claiming injury by the practice is an adult, presumably not readily susceptible to ‘religious indoctrination,’ or peer pressure.� 463 U.S. at 792. Citations omitted.

The majority explicitly acknowledges that a child presumably would be subject to “‘religious indoctrination’ or peer pressure.� It is difficult, then, in the face of deliberately narrow language from the opinion itself, to proceed on the assumption that Marsh is dispositive in a school setting. Even worse for the Marsh argument are later majority opinions that carefully limit that case to its unique factual circumstances, including an “unbroken history of 200 years� of acceptance of the practice, and explicit sanction by the same Congress that proposed what is today the First Amendment. Later Supreme Court majorities have also been careful to keep Marsh separate from school cases, the most strongest statement to that effect being that of Justice Kennedy for the Court in Lee v. Weisman, 505 U.S. 577 (1992):

“The atmosphere at the opening of a session of a state legislature, where adults are free to enter and leave with little comment and for any number of reasons, cannot compare with the constraining potential of the one school event most important for the student to attend. The influence and force of a formal exercise in a school graduation are far greater than the prayer exercise we condoned in Marsh. The Marsh majority in fact gave specific recognition to this distinction, and placed particular reliance on it in upholding the prayers at issue there. Today's case is different. At a high school graduation, teachers and principals must and do retain a high degree of control over the precise contents of the program, the speeches, the timing, the movements, the dress, and the decorum of the students. Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675 (1986). In this atmosphere, the state-imposed character of an invocation and benediction by clergy selected by the school combine to make the prayer a state-sanctioned religious exercise in which the student was left with no alternative but to submit. This is different from Marsh, and suffices to make the religious exercise a First Amendment violation. Our Establishment Clause jurisprudence remains a delicate and fact-sensitive one, and we cannot accept the parallel relied upon by petitioners and the United States between the facts of Marsh and the case now before us. Our decisions in [Engel], and [Abington], require us to distinguish the public school context.� 505 U.S. at 597. Citations omitted. Emphasis added.

My apologies for the long quote, but I felt it was necessary, as it so plainly demonstrates that James Madison’s argument on the basis of Marsh cannot be countenanced in light of recent Supreme Court precedents. The bolded portion is an excellent answer to the argument that the Supreme Court’s Establishment Clause jurisprudence has never relied overmuch on fact-based inquiries. Justice Kennedy makes an excellent point in distinguishing Marsh from any school-related case: the context is so different as to change the result. Captive audience, the peer pressure of youth, the full authority of the State behind an explicitly religious sentiment: all the elements necessary for a showing that the Establishment Clause has been violated. Kennedy’s words, regarding as they are a high school graduation, must apply with equal if not greater force to a classroom setting, which is completely controlled by teachers and/or school administrators. Under Lee’s penetrating analysis, the Pledge must fall.

The attempt to apply Marsh to the Newdow situation is further doomed by Footnote 4 from the majority opinion in Edwards v. Aguillard, 482 U.S. 578 (1987):

“The Lemon test has been applied in all cases since its adoption in 1971, except in [Marsh], where the Court held that the Nebraska Legislature's practice of opening a session with a prayer by a chaplain paid by the State did not violate the Establishment Clause. The Court based its conclusion in that case on the historical acceptance of the practice. Such a historical approach is not useful in determining the proper roles of church and state in public schools, since free public education was virtually nonexistent at the time the Constitution was adopted.� 482 U.S. at 583. Citation omitted.

This is, of course, the death knell for the application of Marsh in a public school context. Two U.S. Supreme Court majority opinions explicitly preclude the possibility.

First of all it is important to note that much of the evidence used thus far really goes to the first prong of the Lemon test and not the second. The first prong of the lemon test asks whether or not the legislation has a secular purpose. Much of the evidence referenced to thus far really speaks to the first prong of lemon as opposed to the second prong of lemon, which asks whether the primary effect is neither to advance nor to inhibit religion. The reason for this is because there is an evidentiary problem in proving the POA, rather the legislation which incorporated the phrase "Under God," has the primary effect of advancing religion. In funding cases this evidentiary problem was solved by simply following the trail of money and then asking what the money was spent on or what the money was used for. In the instance case we do not have the luxury of such enlightening evidence. Seeking to demonstrate the legislation has the primary effect of advancing religion is an arduous task to prove. How can it be proven the inclusion of the words "Under God," has had the primary effect of advancing religion? Has it led to an influx of converts to a particular religion after reciting the pledge?

While it’s obvious that there is no quantitative evidence to prove that the addition of the words “under God� to the Pledge had a primary effect of advancing religion[2], there is more than enough qualitative evidence to go around. “Under God� is one small piece of a rich tapestry of state endorsement and sponsorship of a sort of civic monotheism that soft core accomodationists would claim to be inclusive of all religions. In fact, things like our national motto, legislative prayers, public invocations and benedictions, religious monuments on public property, and frequent use of religion in political discourse trace back to an explicitly Judeo-Christian genesis (no pun intended), with heavy emphasis on the “Christian.� It is this government favoritism towards Christianity, among other factors, that has allowed that religion out of all the many faiths that are practiced in this nation to become firmly entrenched as the national one. We have, of course, never had a non-Christian President, and only 7 of 109 Supreme Court Justices in the history of that august institution have been non-Christians (all seven were or are Jews, if anyone is curious). I’m not complaining about this Christian stranglehold on the highest levels of our government, I’m just noting it. If our nation were less openly aligned with the Christian faith, the monolithic monotheism of high government officials would probably be less complete.

“Under God� is a small but important part of a historical pattern of state approval of Christian religious sentiments. The legislative history of the phrase conclusively establishes that proposition. The explicit identification of many “under God� proponents of opponents as “anti-Christian� shows that the lesson has clearly sunk in with many members of the majority faith—that they are “insiders, favored members of the political community.� It is difficult to see how religion can not be advanced in some way when the State uses its position as schoolmaster to indoctrinate its pupils with faith-based dogma.

The argument this is an instance of the state's endorsement of a profession of faith in a single supreme deity is a valid one. However, instances where the state acknowledges and calls upon divine aid is not unconstitutional, as was the case in Marsh v. Chambers. So long as it is not done to demonstrate a preference for one religion over another, or as an attempt to establish a national religion, then this may be too ambiguous of a reference or preference to religion.

I believe I’ve already dealt with Marsh, but I’m interested to see where you find this ambiguity test. So long as the religion is tepid and diluted enough, it’s ok? The Court has invalidated some pretty tame stuff under the Establishment Clause in its day—the invocation from Engel comes to mind, or the three words added in Wallace. “God� is clearly a religious concept. The government has inserted it into an official Pledge of Allegiance, then required schoolchildren whose attendance is compelled to recite said Pledge. That doesn’t seem so ambiguous to me.

No reasonable person would understand the POA as anything more than a patriotic hymn, as anything more than expressing hope in the future of this nation, confidence in the future of this nation, and recognizing what is worthy of appreciation in our society, such as this grand Republic.

I gave some time to O’Connor’s Lynch concurrence above, but this description seems to perfectly describe the Pledge—prior, that is, to June 14, 1954. After that day, it became a device to express an official government position on something the First Amendment expressly requires the government to stay out of. Frankly, O’Connor never makes any attempt at all to explain why the purposes you enumerate cannot be accomplished in a secular manner. I hope you would admit that if these purposes can be achieved without reference with religion, the Establishment Clause requires that government take that secular route.

With this said it is important to note the students are pledging allegiance to the United States of America and not a supreme deity. The argument the atheistic student or parent will feel certain pressure to pledge an allegiance to a deity is misplaced since the pledge itself is to the nation and not a deity. Furthermore, if the POA is construed as nothing more than a pledge to this nation, a hope in the future of this country, an act of patriotism, which it most certainly is, as opposed to an expression in religious belief, then the atheists argument loses some of its swagger.

The Pledge demands allegiance to flag, Republic, nation, and God. In that order. But even if no one is pledging to this deity, the Pledge clearly implies that said deity exists. I’ve run out of ways to say that the government just can’t do that.

The first prong asks whether or not the program has a secular purpose. The evidence that goes to this prong is the alleged and supposed Congressional records regarding the 1954 Act. The difficulty in relying upon this evidence, however, is the fact not every member of Congress formally expressed what intent they had in passing this law. The difficulty is more likely than not there was not even a majority of Congressman on the record expressing their motives as to why the law was passed. All we have is a statement by a member of the House and some vague reference to the hearings. As Justice Scalia noted in his book A Matter of Interpretation there is very rarely a complete legislative record. Most of the time the legislative record consists of only what a few Congressman and women have said and not the majority. It is therefore, a little deceiving to suggest we have the "intent" or the "purpose" of the Congress before us by relying upon only a few members.

I find it ironic that Scalia, of all people, would endorse this argument. Scalia, the great proponent of original intent (the One True Way to interpret the Constitution). Unfortunately, of course, not every single delegate to the Constitutional Convention expressed exactly what he meant by each provision, so trying to bring their views into modern-day interpretation is an exercise in futility. :rolleyes:

In reality, of course, the standard you lay out above has never been met by any law on the books in any part of this country. Never has an American legislature made a habit of asking each and every legislator who votes for a particular provision why s/he did so. Understanding legislative history and through it, intent, is not an exact science, of course, but then few parts of constitutional law are. Judges have always done the best job with the legislative record they have. If said record is too incomplete to be of use, they resort to other means of determining a law’s constitutionality. This is, in large part, beside the point. There is no conceivable secular purpose to enacting a law whose only function is to add a religious reference to a Pledge where none existed before. Provide me with one, and then we can start to discuss whether the 1954 Congress intended it.

This case seems to fit, as I have already mentioned, into the reasoning and rationale of Marsh v. Chambers and Lynch v. Donnelly. The pledge has been recited for the last 50 years with an increasing understanding in the successive years the POA was patriotic as opposed to religious. It has also been understood the POA is a pledge to this nation, to this Republic, and not to some deity. The POA is recited for no other reason than out of habit and ritual. The Ninth Circuit even admitted in its own opinion that school districts around the country had rules regarding recitation of the pledge, Elk Grove Unified School Dist. v. Newdow. The POA was recited for no other reason than ritualistic and patriotic reasons before inclusion of the phrase, "Under God," and remained the case after inclusion of the POA. Nor did the inclusion of the phrase, "Under God," alter these facts.

The fact that the Pledge has taken on ritual and become a habit does not automatically render religious content neutral. An assertion that God exists cannot logically be construed as remaining impartial between religion and irreligion, as numerous U.S. Supreme Court precedents require. That’s precisely what the 1954 Act and subsequent state endorsement of the Pledge, with the phrase “under God� included, is—an assertion that takes one side in an argument that the government may not, constitutionally, enter into.

[1] Wallace has been authoritatively cited as recently as Board of Education of Kiryas Joel v. Grumet, 512 U.S. 687,698 (1994).

[2] Note that the U.S. Supreme Court has never required such evidence. The Court has invalidated dozens of statutes and programs on Establishment Clause grounds, but in not one of those cases has the record indicated an “influx of converts to a particular religion� as a direct or indirect result of the challenged law or state action.

[James Madison]

That case can comfortably begin and end with a single case, Wallace v. [/I]Jaffree[/I], 472 U.S. 38 (1985). A 6-3 majority invalidated an Alabama statute that amended a previous moment of silence law. The original law provided for a minute of silence “for meditation.� The amendment inserted the words “or voluntary prayer� after “meditation.� The Court held that the amendment lacked a secular legislative purpose, thus violating the first prong of the Lemon test.

Wallace v. Jaffree, 472 U.S. 38 (1985) does not fit comfortably as it is claimed to. SS was correct when he admitted that rarely a factual and legal similarity to the instant issue presents itself and Wallace is no exception. There are immediately more distinctions than SS freely admits. The Court in Wallace found the legislative history had as its purpose for the moment of silence was to promote prayer and thus lacked a secular legislative purpose. This is different from the legislative history of the 1954 act. The purpose of the 1954 act is more analogous to the city’s purpose in Lynch v. Donnelly, 465 U.S. 668 (1984). “The children of our land will be daily impressed with a true understanding of our way of life and its origins.� House Representative Louis Rabaut made this comment regarding the purpose for inclusion of the words “Under God,� in the POA. The Ninth Circuit also recognized this as the purpose of the legislation. Essentially, the purpose of the 1954 act was to bring attention the nation’s religious heritage/tradition and the role it plays in American way of life, something the Court in Lynch did not find to be an illegitimate reason. The word “our� in statement made by Louis Rabaut refers to the United States. “Way of life,� acknowledges the religious heritage/traditions and their roles in the American way of life. As the Court in Lynch said, “There is an unbroken history of official acknowledgment by all three branches of government of the role of religion in American life from at least 1789.� The POA is doing exactly what the Court says here in Lynch. The Court went on to list a host of examples of official acknowledgment of the role of religion in American life and our religious heritage/traditions. The Court cited the fact Thanksgiving was celebrated as a religious holiday as an expression of thanks to God and that “the holiday has not lost its theme of expressing thanks for divine aid any more than Christmas has lost its religious significance.� The Court went on to note official announcements of Presidents and Congress proclaimed both Christmas and Thanksgiving in religious terms.

The Court in Lynch also said the following, “Other examples of reference to our religious heritage are found in the statutorily prescribed national motto ‘In God We Trust …and One Nation Under God.� Now the Court referenced to these examples to establish for later on in the opinion that acknowledgments or references to religious heritage/tradition and or the role of religion in America life is permissible. It set the stage for the Court to say later in the opinion, “The City has principally taken note of a significant historical event…The crèche…depicts the historical origins of the traditional event.� The significant historical event was the birth of Jesus Christ, whose existence is questioned by some non-Christians but not so by Christians and plays a very prominent role in Christianity. There is no dispute the nativity scene is of religious significance. However, the city was merely acknowledging the historical religious holiday, i.e. the city was acknowledging by use of the nativity scene, the Christian origins of the holiday. This does demonstrate the role of religion in the American way of life in celebrating a widely recognized holiday. The Court found this to be a secular purpose, We hold only that Pawtucket has a secular purpose for its display which is all Lemon requires. Similarly, the purpose of the 1954 act was to acknowledge the religious tradition/heritage of the country. If it is a secular purpose in Lynch, and the purpose for inclusion of the words “Under God,� in the POA are the same as the city’s purpose in Lynch, makes the purpose of the 1954 act secular as it was in Lynch. Consequently, the first prong of Lemon is not breached and distinguishes this case from Wallace.

Furthermore, Congress need not have an exclusive secular purpose. We hold only that Pawtucket has a secular purpose for its display, which is all Lemon requires. Were the test that the government must have exclusively secular objectives, much of the conduct and legislation this Court has approved in the past would have been invalidated. Lynch. Additionally, the POA is not a prayer, something I will address later, and this also sets Wallace apart.

The Supreme Court has carved out a couple of highly fact-sensitive exceptions to its general Establishment Clause jurisprudence. The phrase at issue does not readily fit into either of them.

This calls for a conclusion and it is a conclusion that is also at issue in the debate. As a result, this only begs the question further and does noting to advance the argument.

“These features combine to make the government's display of the crèche in this particular physical setting no more an endorsement of religion than such governmental "acknowledgements" of religion as legislative prayers of the type approved in Marsh v. Chambers, 463 U.S. 783 (1983), government declaration of Thanksgiving as a public holiday, printing of "In God We Trust" on coins, and opening court sessions with "God save the United States and this honorable court." Those government acknowledgments of religion 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.� 465 U.S. at 692-3. Instantly, a key phrase leaps out at us. “[L]egitimate secular purpos[e].� That clues the careful observer in that far from acting outside the bounds of Lemon, O’Connor is in fact embracing its three-prong framework, and trying to explain how her examples pass its muster. I believe that to be a profoundly misguided effort. It appears to be some sort of version of the (in)famous “ceremonial deism� argument that is often trotted out in an attempt to convert overtly religious government-sponsored content into meaningless ritual. In the case of the Pledge, the way of ceremonial deism is made more difficult by looking at the time gap between the original enactment and the legal examination of that enactment (a bare fifty years). This is hardly comparable to the centuries-long pedigree of several of the practices O’Connor mentions, and strongly suggests that the plainly religious message inserted into the Pledge in 1954 is still there today. The effort to pass “under God� off as a harmless rite is further hindered by the enormous public outcry on the occasion of the Ninth Circuit’s original ruling that the Pledge violated the Establishment Clause. The two representative branches of government issued public declarations repudiating the decision. It is hard to keep a straight face in the shadow of this evidence when one attempts to assert that “under God� has lost its significance.


The Court is renowned for extrapolating the reasoning and rationale of highly fact sensitive cases and applying the reasoning to a case where facts are different in order to reach an outcome. There have been occasions in the history of the U.S. Supreme Court where fresh precedent setting cases arose from no prior legal precedent or from cases where the facts were not even close. Such modern examples are Griswold v. Connecticut, Miranda v. Arizona, Roe v. Wade, later examples are Meyer v. Nebraska, Schenk v. United States, Gibbons v. Ogden, McCulloch v. Maryland, and other cases such as the first to invalidate school prayer. There is simply no reason why the Court can’t take the reasoning from other cases, or the concurring opinion from other cases, not factually on point and apply that reasoning to the instant case to reach an outcome validating the 1954 act, as they have so often done in the past and not so distant past.

Furthermore, SS seems to want it both ways. In one instance he wants to argue the current POA violates the Establishment clause because the word "God" is strictly a religious term, belonging solely to the Jueo-Christian denomination, and therefore, the words Under God in the POA violate the Establishment clause. Then he makes the curious argument of looking the other way, not entirely since he did criticize O'Connor and is skeptical of ceremonial deism, when similar use of the word "God" is made in other areas, such as In God We Trust on money, or God Save the United States and this Supreme Court. Either his argument the term "God" is strictly a religious term, belonging to the Judeo-Christian denomination, and holds true regardless of time or it does not. It makes little sense to argue the term "God" has a strong if not absolute religious connotation in one instance of public use and not another as a result of a mere passage of time, despite the fact the same religious ladened term is in both "God". I fail to understand how the term "God" can logically lose it's particular religious significance by the mere passage of 100 years as to qualify its use as "ceremonial deism" in some public use but possess religious significance in another despite the fact both use the religious term "God". Unless SS is willing to admit that the term may be religious but regardless of the religiosity of the term and its public use there is no violation of the Establishment clause because of "ceremonial deism". I am willing to admit this may be an argument he is actually making. If SS is in fact making such an argument, then it opens up the door to the possibility the POA does not violate the Establishment clause because it is an instance of ceremonial deism. However, this is a concession I can't believe SS is likely to make after already showing his skepticism for the very notion of ceremonial deism, his tenacious stance that the word "God" is absolutely religious, and use of the religious term in the POA violates the Establishment clause. Yet, SS makes the argument the term is religious and then argue, by relying on U.S. Supreme Court precedent which at least disagrees with SS as to the strong religious message conveyed by the word "God," that those other instances do not violate the Establishment clause but the POA does. In order to be consistent it must be admitted the term "God" is a religious term and no amount of time alters this fact and therefore, public use on money and in the POA violates the Establishment Clause, or that despite it's religious character use of it in certain contexts is permissible because it is not an instance where the state is officially endorsing religion. Now if the latter is the position he is actually making, then this leaves open the possibility the POA is one of those instances.

Now SS may argue the "ceremonial deism" is present in those other cases, despite the religious character he has so monotonously argued is present in the word "God," as a result of the passage of time. I find this argument very problematic. Justice O'Connor never emphasized her rationale, nor did the majority in Lynch so indicate their rational was predicated upon any amount of time. The Court simply did not do any such line drawing nor did Justice O'Connor. In fact, the majority in Lynch repudiated the invitation to do any line drawing. The Court consistently has declined to take a rigid, absolutist view of the Establishment clause. The Court has never said at 100 years of the use of the word "God" in public or on public money qualifies as ceremonial deism. The Court has never drawn a time line in any case, excluding Marsh since you argued prior precedent made using the case as authority pointless. So the focus upon the archaic nature is a futile attempt in determining if the POA is an instance of ceremonial deism. Well more correctly since the POA with the words "Under God," is not as dated as some of the other instances and therefore, does not qualify as ceremonial deism is a futile since the Court has yet to draw any time line anywhere in Lynch. So just because the 1954 act is not as dated does mean we do not have an instance of ceremonial deism. There simply is no focus upon the antique quality of the examples by O'Connor or the majority in Lynch and your attempt to draw lines is futile.

There is no religious message in the POA but only a legitimate secular purpose of illuminating the religious traditions of this country. (See earlier paragraphs). Furthermore, the citing of public outcry over the Ninth Circuit’s decision does not prove the POA is a harmful rite or that through years of monotonous repetition the POA has lost whatever benefit there was to religion, if any at all to begin with. What is paradoxical is most of the people repudiating the Ninth Circuit’s opinion are Christians. Of course they are going to denounce the Ninth Circuit’s opinion and construe the POA to have some religious meaning. The relevant inquiry and focus is whether an objective observer, acquainted with the text, legislative history, and implementation of the statute would perceive it as a state endorsement of religion. Santa Fe Independent School Dist. v. Doe, 120 S.Ct. 2266 (2000). In Santa Fe the Court focused upon, among other things, the text and history of the policy to determine what an objective student’s perception might be. Similarly, focusing upon the history of the 1954 act, that the purpose was not to proselytize but to acknowledge the religious heritage of this country, I remind you a purpose found to be legitimate in Lynch goes to show an objective observer would not construe this as an endorsement of religion. Additionally, the POA is not a prayer. The POA is not a profession Jesus Christ is Lord of God is Lord. The POA is not even close to any prayer enunciated in the bible. When people think of praying or saying prayers, the POA simply does not come to mind. Nobody is reciting the POA when they do pray to God. Rather, the POA is a pledge to this Republic as is indicated by the opening stanza. “I pledge allegiance to the flag and to the United States of America and to the Republic for which it stands.� Nobody is pledging allegiance to God or swearing dedication to him by reciting the POA. The POA was recognized as a pledge of allegiance to the flag, U.S., and Republic long before 1954, see West Virginia v. Barnette, 319 U.S. 624 (1943). and inclusion of “Under God,� does not alter to whom or what allegiance was originally and still is being pledged to, flag, country, and republic but not God. Nor does inclusion of “Under God,� transform it from a pledge of allegiance to a prayer. It is not synonymous with the Lord’s Prayer in any form. In fact, the POA really is not parallel to any prayer uttered in the bible.

Additionally, I find the argument that the inclusion of the words “Under God,� and refusal to recite the POA as a result of those very words precipitates a hostile environment or results in an element of coercion unpersuasive. If the kid does not want to say the POA, for whatever reason, they do not have to see West Virginia v. Barnette. Furthermore, the social pressure to recite the POA may not even derive from the words "Under God," in the POA. Rather, the social pressure might simply come from kids reciting the POA itself and a kid's refusal to recite it for no other reason than he does not want to recite it or for political reasons. The inclusion of the words "Under God," does not magically and all of a sudden impute a degree of social pressure on reciting the POA that was not there before, see West Virginia v. Barnette. In the West Virginia v. Barnette case the recital of the POA, prior to the inclusion of the words "Under God," was mandatory in the public schools. A parent, on behalf of his child, challenged the mandatory policy and won. However, it cannot be denied that the kid's refusal to recite the POA will bring upon him attention, scorn, disgust, and pressure to recite the POA. Now this happened before the words "Under God," were included. So this argument the words "Under God," impart some degree of social pressure that did not exist before or more social pressure is false. The coercion of reciting the POA was present in existence long before the words “Under God,� were ever included.

While it’s obvious that there is no quantitative evidence to prove that the addition of the words “under God� to the Pledge had a primary effect of advancing religion[2], there is more than enough qualitative evidence to go around. “Under God� is one small piece of a rich tapestry of state endorsement and sponsorship of a sort of civic monotheism that soft core accomodationists would claim to be inclusive of all religions. In fact, things like our national motto, legislative prayers, public invocations and benedictions, religious monuments on public property, and frequent use of religion in political discourse trace back to an explicitly Judeo-Christian genesis (no pun intended), with heavy emphasis on the “Christian.� It is this government favoritism towards Christianity, among other factors, that has allowed that religion out of all the many faiths that are practiced in this nation to become firmly entrenched as the national one. We have, of course, never had a non-Christian President, and only 7 of 109 Supreme Court Justices in the history of that august institution have been non-Christians (all seven were or are Jews, if anyone is curious). I’m not complaining about this Christian stranglehold on the highest levels of our government, I’m just noting it. If our nation were less openly aligned with the Christian faith, the monolithic monotheism of high government officials would probably be less complete.

Under God� is a small but important part of a historical pattern of state approval of Christian religious sentiments. The legislative history of the phrase conclusively establishes that proposition. The explicit identification of many “under God� proponents of opponents as “anti-Christian� shows that the lesson has clearly sunk in with many members of the majority faith—that they are “insiders, favored members of the political community.� It is difficult to see how religion can not be advanced in some way when the State uses its position as schoolmaster to indoctrinate its pupils with faith-based dogma.

Really? Did a scientific poll of soft core accommodationist reveal this as their perception or belief? I think some accommodationist, including some on the Court, would concur in saying the words “Under God,� is nothing more than a reference to our religious heritage. In fact, Justice O’Connor in her concurring opinion in Lynch completely contradicts these allegations. O’Connor also references some of the same practices as you do in her concurrence in Lynch, “These features combine to make the government’s display of the crèche no more an endorsement of religion than such government acknowledgments of religion as legislative prayers…government declaration of Thanksgiving as a public holiday, printing of ‘In God We Trust’ on coins, and opening court sessions with ‘God save the United States and this honorable court.� O’Connor reaches a vastly different conclusion than you, as does the majority in Lynch, regarding these rituals. O’Connor and the majority do not view them as state endorsement of religion but rather as governmental acknowledgments of our religious traditions, the role of religion in our American way of life, solemnizing public occasions, and encouraging recognition of what worthy of appreciation in society. As a result, they are not instances of governmental endorsement of a particular religious belief or religious beliefs. So the qualitative evidence is lacking to prove government endorsement of religion. Since the POA falls within those examples referenced by O’Connor and the majority in Lynch, and those are not instances of state endorsement of religion, then neither is the POA an instance of state endorsement of religion.

Furthermore, there is no threat here of the state or federal government establishing a religion with the inclusion of the words, “Under God,� in the POA. Additionally, the benefit to religion or religions in this case by the inclusion of one word, “God,� is, in the words of the Court in Lynch, “indirect, remote, and incidental,� to even suggest people opposed to the words are outsiders and those who favor the words are insiders in the political community.




I find it ironic that Scalia, of all people, would endorse this argument. Scalia, the great proponent of original intent (the One True Way to interpret the Constitution).

Well he has and it can be read in full detail in his book A Matter of Interpretation. In this book he even explains why "original intent," defined as the intent of the drafters, should not be binding.

In reality, of course, the standard you lay out above has never been met by any law on the books in any part of this country. Never has an American legislature made a habit of asking each and every legislator who votes for a particular provision why s/he did so. Understanding legislative history and through it, intent, is not an exact science, of course, but then few parts of constitutional law are.

Now I find this interesting. Earlier on you approached the notion of "ceremonial deism" with much skepticism, despite the fact it is relied upon by the Court. Similarly, I have relied upon the Court's use of "legislative history," with much skepticism. As you freely admit, understanding legislative intent is not an exact science, and the practice of law is not an exact science, and interpreting the U.S. Constitution is not an exact science, and therefore, interpreting the Establishment clause is likewise not an exact science. Now if you are free to illuminate the flaws of ceremonial deism then I must likewise be free to illuminate the flaws of relying upon alleged "legislative intent".

There is no conceivable secular purpose to enacting a law whose only function is to add a religious reference to a Pledge where none existed before. Provide me with one, and then we can start to discuss whether the 1954 Congress intended it.

I already have earlier in the post relying upon the rationale of Lynch. The purpose of the law was to illuminate the religious traditions of America and the role of religion in the American way of life, something the Court in Lynch had no problem with, and something the words of Mr. Rabaut testify to.

[KnightWhoSaysNi]

StrictSeparationist has informed me that he will not be able to meet the deadline for the next statement. The rules permit him a 3 day grace period, extending the deadline to July 3rd. He will have until then to submit his next statement.

Jason

[StrictSeparationist]

Wallace v. Jaffree, 472 U.S. 38 (1985) does not fit comfortably as it is claimed to. SS was correct when he admitted that rarely a factual and legal similarity to the instant issue presents itself and Wallace is no exception. There are immediately more distinctions than SS freely admits. The Court in Wallace found the legislative history had as its purpose for the moment of silence was to promote prayer and thus lacked a secular legislative purpose. This is different from the legislative history of the 1954 act. The purpose of the 1954 act is more analogous to the city’s purpose in Lynch v. Donnelly, 465 U.S. 668 (1984).
The Court relied on the legislative record in part, but it also applied a common-sense textual analysis:

“The unrebutted evidence of legislative intent contained in the legislative record and in the testimony of the sponsor of [the voluntary prayer amendment] is confirmed by a consideration of the relationship between this statute and the two other measures that were considered in this case. The District Court found that the 1981 statute and its 1982 sequel had a common, nonsecular purpose. The wholly religious character of the later enactment is plainly evident from its text. When the differences between [the voluntary prayer amendment] and its 1978 predecessor…are examined, it is equally clear that the 1981 statute has the same wholly religious character.� 472 U.S. 38, 58. Emphasis added.


“The children of our land will be daily impressed with a true understanding of our way of life and its origins.� House Representative Louis Rabaut made this comment regarding the purpose for inclusion of the words “Under God,� in the POA.
Congressman Rabaut also made the following comment regarding the proposal to add “under God� to the Pledge: “You may argue from dawn to dusk about differing political, economic and social systems, but the fundamental issue which is the unbridgeable gap between America and Communist Russia is a belief in Almighty God…�

A “belief.� Not an “understanding of our way of life and its origins,� but a “belief in Almighty God.� Then we have Eisenhower’s statement at the signing ceremony: “From this day forward, the millions of our schoolchildren will daily proclaim in every city and town, every village and rural schoolhouse, the dedication of our nation and our people to the Almighty.� And guess what song was playing at that same ceremony? It was “Onward Christian Soldiers.� Eisenhower also admitted that he was persuaded to throw his support behind the amendment by his pastor, who delivered a sermon that called for its adoption.

The legislative record also asserts that

“At this moment of our history the principles underlying our American Government and the American way of life are under attack by a system whose philosophy is at direct odds with our own. Our American Government is founded on the concept of the individuality and the dignity of the human being. Underlying this concept is the belief that the human person is important because he was created by God and endowed by Him with certain inalienable rights which no civil authority may usurp. The inclusion of God in our pledge therefore would further acknowledge the dependence of our people and our Government upon the moral directions of the Creator. At the same time it would serve to deny the atheistic and materialistic concepts of communism with its attendant subservience of the individual.�

The historical record is unambiguously unfavorable to a presumption of religious neutrality; the above is only a small sampling of the evidence that “under God� was adopted for explicitly religious reasons. If the record is unclear, of course, we must deal with the law according to its plain text, which also does not support the hypothesis that the phrase might not be religious in its nature.


The Ninth Circuit also recognized this as the purpose of the legislation.
Actually, the Ninth Circuit said that “Historically, the primary purpose of the 1954 Act was to advance religion, in conflict with the first prong of the Lemon test.� It went on to note that the federal government’s primary defense was to ask the court to look at the text of the Pledge as a whole, and that this approach was in direct conflict with Wallace analysis.


The Court in Lynch also said the following, “Other examples of reference to our religious heritage are found in the statutorily prescribed national motto ‘In God We Trust …and One Nation Under God.� Now the Court referenced to these examples to establish for later on in the opinion that acknowledgments or references to religious heritage/tradition and or the role of religion in America life is permissible.

An acknowledgement of some historical fact is out of place (to say the least) in a normative patriotic oath. No other part of the Pledge can readily be said to simply note a fact, as opposed to stating an ideal. The oath begins “I pledge,� which gives rise to the inference that the rest affirms a set of beliefs that are (or ought to be) common to all Americans, beliefs that underpin our nation’s very existence. Besides, where a question like this arises, it is the Court’s usual practice to turn to its trusty reasonable observer, who, armed with his knowledge of the Pledge’s history and the circumstances surrounding the addition of “under God� (particularly the explicitly Christian rhetoric that accompanied the passage of the 1954 Act) would be justified in concluding that the phrase was not a historical reference, but rather a state endorsement of religion generally and monotheism in particular.

It set the stage for the Court to say later in the opinion, “The City has principally taken note of a significant historical event…The crèche…depicts the historical origins of the traditional event.� The significant historical event was the birth of Jesus Christ, whose existence is questioned by some non-Christians but not so by Christians and plays a very prominent role in Christianity.
You seem to have identified the problem for yourself. There is considerable disagreement over the historical veracity of the Nativity, just as there is dispute over the existence of a deity, and as to its identity and nature among those who agree that such an entity does exist. Where such a live and divisive controversy exists, it is inappropriate in the extreme for government to take a position on any religious question.


There is no dispute the nativity scene is of religious significance. However, the city was merely acknowledging the historical religious holiday, i.e. the city was acknowledging by use of the nativity scene, the Christian origins of the holiday. This does demonstrate the role of religion in the American way of life in celebrating a widely recognized holiday. The Court found this to be a secular purpose, We hold only that Pawtucket has a secular purpose for its display which is all Lemon requires. Similarly, the purpose of the 1954 act was to acknowledge the religious tradition/heritage of the country. If it is a secular purpose in Lynch, and the purpose for inclusion of the words “Under God,� in the POA are the same as the city’s purpose in Lynch, makes the purpose of the 1954 act secular as it was in Lynch. Consequently, the first prong of Lemon is not breached and distinguishes this case from Wallace.
I cannot agree that the crèche in Lynch had a secular purpose. I realize that I am, on that point, in opposition to Supreme Court precedent, but I also think that the Pledge is not saved by the holding in Lynch. In that case, the Court did devote some attention to the context of the religious display, and that formed part of the basis for the conclusion that its purpose was secular. By including symbols traditionally associated with the more secular aspects of the holiday, Pawtucket altered the meaning of the crèche itself. The importance of this secular context was made apparent in Allegheny v. ACLU, 392 U.S. 573 (1989), when the Court held unconstitutional a county’s display of a solitary Nativity scene, while simultaneously approving a menorah that was surrounded by secular holiday symbols.

What is key, of course, is the type of context. In both Lynch and Allegheny, the Court acknowledged that it was confronted with displays that, standing alone, were explicitly religious in nature, which would tend to suggest an unconstitutional endorsement by the State. However, by including related secular content, the government can actually change the message that it sends, and thus the meaning of the religious symbol. I think it clear that the Court would not have approved a crèche with context that in no way mitigated its religious overtones. Similarly, the Court ought not to approve a religious phrase in a government-sponsored Pledge unless its secular context somehow secularizes the offending portion. That is clearly not the case here, as the surrounding context has nothing to do with the question of religion. (This is hardly surprising, considering that the phrase was inserted into an already fully-formed Pledge.) Because the secular context does not speak to the religious statement, it cannot bring the Pledge within the purview of Lynch, as modified (or perhaps clarified) by Allegheny.


Furthermore, Congress need not have an exclusive secular purpose. We hold only that Pawtucket has a secular purpose for its display, which is all Lemon requires. Were the test that the government must have exclusively secular objectives, much of the conduct and legislation this Court has approved in the past would have been invalidated. Lynch.
You are correct that the secular purpose need not be exclusive, but it must certainly be primary. In all cases where the Court has confronted the problem of a statute or program with two or more arguable purposes, it has always looked to what the foremost effect of the challenged program appears to be. Thus, in Edwards v. Aguillard, 482 U.S. 578 (1987), the Court repeatedly made reference to the primary legislative purpose:

“The legislative history documents that the Act's primary purpose was to change the science curriculum of public schools in order to provide persuasive advantage to a particular religious doctrine…� Ibid., at 592.

“Because the primary purpose of the Creationism Act is to advance a particular religious belief, the Act endorses religion in violation of the First Amendment.� Ibid., at 593.

“[T]eaching a variety of scientific theories about the origins of humankind to schoolchildren might be validly done with the clear secular intent of enhancing the effectiveness of science instruction. But because the primary purpose of the Creationism Act is to endorse a particular religious doctrine, the Act furthers religion in violation of the Establishment Clause.� Ibid., at 594.

As you can see, the Court’s usual method of discerning a law’s primary purpose is to look to the legislative record. In the case of the 1954 Act, I’ve already cited evidence from the record that establishes a likelihood that the primary purpose here was religious in nature.


This calls for a conclusion and it is a conclusion that is also at issue in the debate. As a result, this only begs the question further and does noting to advance the argument.
Perhaps if I hadn’t supported this assertion at all, it would be question-begging. As is, I answered your Marsh and Lynch arguments last round, and have devoted further time to Lynch here. Unless you’d like to offer more “exceptions to the Establishment Clause,� I believe I have supported my statement sufficiently.


The Court is renowned for extrapolating the reasoning and rationale of highly fact sensitive cases and applying the reasoning to a case where facts are different in order to reach an outcome. There have been occasions in the history of the U.S. Supreme Court where fresh precedent setting cases arose from no prior legal precedent or from cases where the facts were not even close. Such modern examples are Griswold v. Connecticut, Miranda v. Arizona, Roe v. Wade, later examples are Meyer v. Nebraska, Schenk v. United States, Gibbons v. Ogden, McCulloch v. Maryland, and other cases such as the first to invalidate school prayer. There is simply no reason why the Court can’t take the reasoning from other cases, or the concurring opinion from other cases, not factually on point and apply that reasoning to the instant case to reach an outcome validating the 1954 act, as they have so often done in the past and not so distant past.
As I demonstrated in my first rebuttal, the Court sometimes does treat facts as dispositive, particularly in Establishment Clause cases. One such fact that often determines the outcome of a case is the setting in which the alleged violation takes place. The Court has always been particularly vigilant in guarding against religious encroachments in the public schools, and has consistently and explicitly declined to apply certain Establishment Clause analyses to public school problems. See last round’s post for examples, especially those that show why your reliance on Marsh is not sustainable.


Furthermore, SS seems to want it both ways. In one instance he wants to argue the current POA violates the Establishment clause because the word "God" is strictly a religious term, belonging solely to the Jueo-Christian denomination, and therefore, the words Under God in the POA violate the Establishment clause. Then he makes the curious argument of looking the other way, not entirely since he did criticize O'Connor and is skeptical of ceremonial deism, when similar use of the word "God" is made in other areas, such as In God We Trust on money, or God Save the United States and this Supreme Court. Either his argument the term "God" is strictly a religious term, belonging to the Judeo-Christian denomination, and holds true regardless of time or it does not.

I certainly don’t “look the other way.� Rather, I focus on the issue at hand, which is not the national motto, or the Court’s opening incantation (neither of which has much to do with a public school context, and neither of which coerces anyone to say anything). Moreover, if I’ve given the impression that I feel the examples you cite are constitutionally defensible, I apologize, as that was not my intention. However, when arguing a specific issue of law, it is general practice to argue only the issue you wish to see resolved, and not peripheral matters. Finally, as to ceremonial deism, I certainly feel that neither the term nor the concept has any place in serious Establishment Clause commentary, but I realize that the Supreme Court disagrees with me, and thus argue within its strictures, and not my own. You, of course, are free (for example) to argue that Marsh ought to apply in a public school context, despite clear evidence that the Supreme Court disagrees with you, but you would unwise to leave the matter there. If you refuse to dress your argument in the trappings of the current framework, you leave yourself open to the easy counter that “the Supreme Court disagrees with you.� That is precisely what I’ve avoided by arguing that “under God� is not an instance of ceremonial deism, even as advocates of that concept would have it, despite the fact that I think it has no constitutional basis.
It makes little sense to argue the term "God" has a strong if not absolute religious connotation in one instance of public use and not another as a result of a mere passage of time, despite the fact the same religious ladened term is in both "God". I fail to understand how the term "God" can logically lose it's particular religious significance by the mere passage of 100 years as to qualify its use as "ceremonial deism" in some public use but possess religious significance in another despite the fact both use the religious term "God".

I don’t really understand the logic myself, which is understandable, given that I’ve only borrowed it. Marsh, however, clearly implies that the historical pedigree of legislative prayer is the prime reason that it passes Establishment Clause muster, and that pedigree simply does not exist here. Most important about legislative prayer, in the view of the Marsh Court, was that it was passed by the First Congress, thus indicating that the men who drafted the First Amendment did not intend to bar that particular practice. With that talisman to guard it, the Court threw legal analysis to the winds and rubber-stamped prayer in the nation’s statehouses. Implicit in the Court’s dodging was the recognition that, under other circumstances, they would probably be compelled to reach a contrary result (by actually applying Lemon analysis). “Under God� certainly doesn’t have First Congressional approval, so it must pass Lemon. It doesn’t.


his tenacious stance that the word "God" is absolutely religious,
I pulled this out of your paragraph (snipping the rest, as I feel I’ve cleared up any confusion as to the argument I’m actually making) to note the absurdity of this. Yes, you’re actually implying that the word “God� is not religious in the sense that it is diametrically opposed to a non-theistic worldview. I’m sorry, but it is. Your basic argument, I think, takes account of that fact, by claiming that the religious content is protected from invalidation by reason of its insignificance, or perhaps its gradual loss of any real meaning through rote repetition. But yes, underneath that all, there must be an acknowledgement that “God� is most definitely a religious word that describes a religious concept. Our government has appropriated that word and inserted it into a normative patriotic oath, and in the process it has taken a stance on a religious question.


Now SS may argue the "ceremonial deism" is present in those other cases, despite the religious character he has so monotonously argued is present in the word "God," as a result of the passage of time. I find this argument very problematic. Justice O'Connor never emphasized her rationale, nor did the majority in Lynch so indicate their rational was predicated upon any amount of time. The Court simply did not do any such line drawing nor did Justice O'Connor. In fact, the majority in Lynch repudiated the invitation to do any line drawing. The Court consistently has declined to take a rigid, absolutist view of the Establishment clause. The Court has never said at 100 years of the use of the word "God" in public or on public money qualifies as ceremonial deism. The Court has never drawn a time line in any case, excluding Marsh since you argued prior precedent made using the case as authority pointless.
Taking the last point first, I’ve only ever argued that you cannot use Marsh to argue that “under God� ought to be given a Lemon pass, as that particular aspect of its holding has been explicitly disqualified for use in public school cases. As for these other examples you cite, they are not apposite to the instant Establishment Clause violation (reasons noted above).


So the focus upon the archaic nature is a futile attempt in determining if the POA is aninstance of ceremonial deism. Well more correctly since the POA with the words "Under God," is not as dated as some of the other instances and therefore, does not qualify as ceremonial deism is a futile since the Court has yet to draw any time line anywhere in Lynch. So just because the 1954 act is not as dated does mean we do not have an instance of ceremonial deism. There simply is no focus upon the antique quality of the examples by O'Connor or the majority in Lynch and your attempt to draw lines is futile.
I’ve never claimed that there’s a hard-and-fast rule about the age required to qualify as ceremonial deism. Rather, I’ve steadfastly maintained that the Marsh exception will not avail you, given that the special historical conditions simply don’t exist in this case.

As for the objective observer, I feel that s/he would conclude that the Pledge’s earlier history demonstrates a religious purpose for the 1954 Act, and that public outcry over the decision, with many of the Pledge’s opponents identifying the offending phrase as religious but insisting that it ought to be left alone (in plain opposition to Supreme Court precedent) would reinforce that conclusion. S/he would understand that to most people who recite the Pledge, the phrase “under God� is far from meaningless ceremonial deism. What one’s opinion of the phrase is definitely differs depending on one’s religious views, but there is no reason to believe that Christians are more likely than others to perceive the phrase as meaningful.


Additionally, I find the argument that the inclusion of the words “Under God,� and refusal to recite the POA as a result of those very words precipitates a hostile environment or results in an element of coercion unpersuasive. If the kid does not want to say the POA, for whatever reason, they do not have to see West Virginia v. Barnette. Furthermore, the social pressure to recite the POA may not even derive from the words "Under God," in the POA. Rather, the social pressure might simply come from kids reciting the POA itself and a kid's refusal to recite it for no other reason than he does not want to recite it or for political reasons. The inclusion of the words "Under God," does not magically and all of a sudden impute a degree of social pressure on reciting the POA that was not there before, see West Virginia v. Barnette. In the West Virginia v. Barnette case the recital of the POA, prior to the inclusion of the words "Under God," was mandatory in the public schools. A parent, on behalf of his child, challenged the mandatory policy and won. However, it cannot be denied that the kid's refusal to recite the POA will bring upon him attention, scorn, disgust, and pressure to recite the POA. Now this happened before the words "Under God," were included. So this argument the words "Under God," impart some degree of social pressure that did not exist before or more social pressure is false. The coercion of reciting the POA was present in existence long before the words “Under God,� were ever included.
You’re right that the addition of “under God� doesn’t change the element of coercion inherent in the situation, but the inclusion of religious content does bring the Pledge into the scope of the coercion test articulated in Lee, irrespective of the fact that it is not a formal prayer, as confronted in that case. As you’ve often said, the Court frequently takes conclusions of law and applies them to situations with widely varying factual backgrounds. I agree, but I was able to produce evidence that the cases you cited have such unique factual circumstances that the Court has refused to apply them to public school cases. If you’re serious about the distinction between a formal prayer and a garden-variety government endorsement of religion that does not take the form of an invocation, please provide some case law to support the theory that they are materially different for Establishment Clause purposes.


Really? Did a scientific poll of soft core accommodationist reveal this as their perception or belief? I think some accommodationist, including some on the Court, would concur in saying the words “Under God,� is nothing more than a reference to our religious heritage. In fact, Justice O’Connor in her concurring opinion in Lynch completely contradicts these allegations. O’Connor also references some of the same practices as you do in her concurrence in Lynch, “These features combine to make the government’s display of the crèche no more an endorsement of religion than such government acknowledgments of religion as legislative prayers…government declaration of Thanksgiving as a public holiday, printing of ‘In God We Trust’ on coins, and opening court sessions with ‘God save the United States and this honorable court.� O’Connor reaches a vastly different conclusion than you, as does the majority in Lynch, regarding these rituals. O’Connor and the majority do not view them as state endorsement of religion but rather as governmental acknowledgments of our religious traditions, the role of religion in our American way of life, solemnizing public occasions, and encouraging recognition of what worthy of appreciation in society. As a result, they are not instances of governmental endorsement of a particular religious belief or religious beliefs. So the qualitative evidence is lacking to prove government endorsement of religion. Since the POA falls within those examples referenced by O’Connor and the majority in Lynch, and those are not instances of state endorsement of religion, then neither is the POA an instance of state endorsement of religion.
I left this intact because I don’t want anyone to think that I’m avoiding it, but I do feel that the argument that “under God� is a historical reference is sufficiently addressed by noting that the Supreme Court has described the Pledge as “normative,� and that none of the other portions of the Pledge appear to be historical references. I’ve made this same point earlier in the post.


Furthermore, there is no threat here of the state or federal government establishing a religion with the inclusion of the words, “Under God,� in the POA. Additionally, the benefit to religion or religions in this case by the inclusion of one word, “God,� is, in the words of the Court in Lynch, “indirect, remote, and incidental,� to even suggest people opposed to the words are outsiders and those who favor the words are insiders in the political community.
The forbidden outsider-insider message that O’Connor spoke of in Lynch is certainly far more evident here, in the context of a ritual that is closely associated with patriotism and government approval, than it was in the erection of a crèche amid a host of secular holiday symbols. That setting carried no political overtones whatsoever. The Pledge, in contrast, carries many.


Now I find this interesting. Earlier on you approached the notion of "ceremonial deism" with much skepticism, despite the fact it is relied upon by the Court. Similarly, I have relied upon the Court's use of "legislative history," with much skepticism. As you freely admit, understanding legislative intent is not an exact science, and the practice of law is not an exact science, and interpreting the U.S. Constitution is not an exact science, and therefore, interpreting the Establishment clause is likewise not an exact science. Now if you are free to illuminate the flaws of ceremonial deism then I must likewise be free to illuminate the flaws of relying upon alleged "legislative intent".
Feel free to illuminate whatever you’d like. I’ll note, however, that there is a certain qualitative difference in questioning a particular doctrine, as I have done, and questioning a cross-doctrinal method of evaluating statutes, as you are doing. You might also see that I’ve answered arguments that arise when one assumes ceremonial deism is good law, as I hope you’ll endeavor to do with regard to arguments that assume legislative intent is a valid way of analyzing a challenged law.

Dirkduck has noted that some Presidents are probably better described as non-Christians. My point was mainly that Christian political dominance is so complete that no non-Christian could hope to get him/herself elected to that high office without pretending some sort of Christian faith, as did the men he cites at various points during their public careers.

Finally, I hope that no one is disappointed by the precipitous dropoff in net case law citation in this post. I feel that a reader who has been following the debate is probably already familiar with most of the cases we’re discussing and many of the pertinent Supreme Court citations, thus my increasing familiarity with those cases.

[KnightWhoSaysNi]

I've decided to impose a change to the debate parameters. Both debate participants have had trouble meeting the one week deadline. For the rest of the debate, the maximum duration allowed between statements will be 10 days.

Jason

[James Madison]

Congressman Rabaut also made the following comment regarding the proposal to add “under God� to the Pledge: “You may argue from dawn to dusk about differing political, economic and social systems, but the fundamental issue which is the unbridgeable gap between America and Communist Russia is a belief in Almighty God…�A “belief.� Not an “understanding of our way of life and its origins,� but a “belief in Almighty God.� Then we have Eisenhower’s statement at the signing ceremony: “From this day forward, the millions of our schoolchildren will daily proclaim in every city and town, every village and rural schoolhouse, the dedication of our nation and our people to the Almighty.� And guess what song was playing at that same ceremony? It was “Onward Christian Soldiers.� Eisenhower also admitted that he was persuaded to throw his support behind the amendment by his pastor, who delivered a sermon that called for its adoption.

“At this moment of our history the principles underlying our American Government and the American way of life are under attack by a system whose philosophy is at direct odds with our own. Our American Government is founded on the concept of the individuality and the dignity of the human being. Underlying this concept is the belief that the human person is important because he was created by God and endowed by Him with certain inalienable rights which no civil authority may usurp. The inclusion of God in our pledge therefore would further acknowledge the dependence of our people and our Government upon the moral directions of the Creator. At the same time it would serve to deny the atheistic and materialistic concepts of communism with its attendant subservience of the individual.�



Do you have a cite to some source, perhaps the legislative record itself, for the last paragraph? Furthermore, I would argue the last paragraph operates in both ways. There is a discussion about the American way of life and the inclusion of the words "Under God," is an acknowledgment of the religious heritage and traditions of the country. They seek to include the words to illuminate the American way of life, synonymous with illuminating American traditions since our way of life is in part based upon our traditions and our heritage. So while there is some evidence to support your contention there is also evidence to support the claim they had a secular purpose similar if not identical to that in Lynch .

Illuminating the historical record, a focus on the word “belief,� Eisenhower’s statement at the signing ceremony, and the song of “Onward Christian soldiers,� does not at all mean the first prong of Lemon has not been satisfied. As the Court in Lynch, We hold only that Pawtucket has secular purpose for its display, which is all that Lemon requires. Were the test that the government must have “exclusively secular� objectives, much of the conduct and legislation this Court has approved in the past would have been invalidated. So long as Congress had a secular purpose, and the secular purpose was acknowledging this nation’s religious heritage and traditions, then Lemon is satisfied. Regardless of how many examples you can call attention to, so long as there is a secular purpose, the first prong of Lemon has been met.

An acknowledgement of some historical fact is out of place (to say the least) in a normative patriotic oath. No other part of the Pledge can readily be said to simply note a fact, as opposed to stating an ideal. The oath begins “I pledge,� which gives rise to the inference that the rest affirms a set of beliefs that are (or ought to be) common to all Americans, beliefs that underpin our nation’s very existence. Besides, where a question like this arises, it is the Court’s usual practice to turn to its trusty reasonable observer, who, armed with his knowledge of the Pledge’s history and the circumstances surrounding the addition of “under God� (particularly the explicitly Christian rhetoric that accompanied the passage of the 1954 Act) would be justified in concluding that the phrase was not a historical reference, but rather a state endorsement of religion generally and monotheism in particular.

Your focus upon the wording of the pledge really obscures the issue. Regardless of the pledge’s mechanics so long as the first and second prongs of Lemon are satisfied, and I believe they are as indicated by my preceding post, then there is no violation of the Establishment clause. Finally, focusing on two words without their context is an incomplete analysis. “I pledge allegiance to the flag and to the United States of America,� is the opening stanza of the POA. The words “I pledge,� are specifically in reference to the flag and the United States and nothing else. The inference you draw relying on these two words does not even remotely follow considering the words “I pledge,� are directly related to the subjects of the flag and the United States. The rest of the POA can be viewed as nothing more than, “Encouraging the recognition of what is worthy of appreciation in society.� Lynch, Justice O’Connor’s concurrence. Furthermore a reasonable observer, armed with the knowledge of the pledge’s history, including the purpose to acknowledge or country’s religious heritage and traditions, would not find this to be a state endorsement of religion.

You seem to have identified the problem for yourself. There is considerable disagreement over the historical veracity of the Nativity, just as there is dispute over the existence of a deity, and as to its identity and nature among those who agree that such an entity does exist. Where such a live and divisive controversy exists, it is inappropriate in the extreme for government to take a position on any religious question.

Let’s not go off of the deep end here. There is nothing extremely inappropriate for the U.S. Supreme Court to rule in favor of the POA or for Congress’ adaptation of it. The Supreme Court did not construe the placement of the nativity scene as extremely inappropriate conduct on behalf of Pawtucket nor did the Court consider their decision as an instance of extreme inappropriate conduct. I do not at all think that since an issue is divisive and live renders government action in such an area as extremely inappropriate. Furthermore, the majority in Lynch would argue Pawtucket has not taken any position on the issue and premised upon this reasoning I disagree the government has taken any such position on the present issue. All the government has done, in both scenarios, is acknowledge the religious traditions and heritage of this nation. This is vastly different than taking a position on the religious question.

I cannot agree that the crèche in Lynch had a secular purpose. I realize that I am, on that point, in opposition to Supreme Court precedent, but I also think that the Pledge is not saved by the holding in Lynch. In that case, the Court did devote some attention to the context of the religious display, and that formed part of the basis for the conclusion that its purpose was secular. By including symbols traditionally associated with the more secular aspects of the holiday, Pawtucket altered the meaning of the crèche itself. The importance of this secular context was made apparent in Allegheny v. ACLU, 392 U.S. 573 (1989), when the Court held unconstitutional a county’s display of a solitary Nativity scene, while simultaneously approving a menorah that was surrounded by secular holiday symbols. What is key, of course, is the type of context. In both Lynch and Allegheny, the Court acknowledged that it was confronted with displays that, standing alone, were explicitly religious in nature, which would tend to suggest an unconstitutional endorsement by the State. However, by including related secular content, the government can actually change the message that it sends, and thus the meaning of the religious symbol. I think it clear that the Court would not have approved a crèche with context that in no way mitigated its religious overtones. Similarly, the Court ought not to approve a religious phrase in a government-sponsored Pledge unless its secular context somehow secularizes the offending portion. That is clearly not the case here, as the surrounding context has nothing to do with the question of religion. (This is hardly surprising, considering that the phrase was inserted into an already fully-formed Pledge.) Because the secular context does not speak to the religious statement, it cannot bring the Pledge within the purview of Lynch, as modified (or perhaps clarified) by Allegheny.

Of course you cannot agree. This goes right along with a point I made before. You denounce ceremonial deism in any form. As you said before, and I paraphrase roughly, ceremonial deism is a constitutionally bankrupt interpretation erected under the veil of constitutionality by accommodationist to covertly allow some religious endorsements by the state.
Furthermore, I do not by your distinction. In no way does the majority opinion in Lynch even support your contention that Pawtucket altered the meaning of the crèche itself. The religious meaning of the crèche has to be maintained in order for the Court’s reasoning to even make sense. The crèche most certainly has a religious meaning but Pawtucket did not include the crèche to endorse the religious meaning but rather to acknowledge the religious traditions and heritage of the holiday. This is the most correct interpretation of Lynch. Otherwise, the Court’s use of other examples of the public’s acknowledgement of our nation’s religious heritage and traditions make no sense if the examples themselves do not have a strong religious characteristic.
Now the inclusion of the other symbols associated with the holiday season was no referenced by the Court in Lynch as a demonstration that the crèche’s religious overtones were mitigated and there is nothing in the opinion to so indicate. Rather, as is abundantly clear by the opinion in Lynch, the inclusion of the other seasonal symbols by Pawtucket was referenced by the Court as evidence that Pawtucket was not endorsing any religious message but to the contrary was seeking to acknowledge the religious heritage and traditions of the holiday. This is also the most accurate interpretation of Allegheny. The crèche in this case most certainly had a religious message because if it did not then the Court’s reasoning makes absolutely no sense in Allegheny. However, it was not the religious message itself which was the problem but the city’s conduct. They placed the crèche inside the building all by itself. This arrangement gave the appearance that the city was demonstrating preferential treatment to the religious message presented by the crèche as opposed to the religious message associated with the menorah. The crèche and menorah most certainly have a strong religious message, regardless of their arrangements and no particular placing an ordering of the displays can alter this fact. However, given the strong religious message associated with both the government complicates the issue by having one display inside at the top of the grand staircase and the other displays outside. This arrangement, according to the Court in Allegheny, gives the appearance the state is endorsing the religious message associated with the crèche by virtue of the fact the crèche has an assumed preferred placement.

You are correct that the secular purpose need not be exclusive, but it must certainly be primary. In all cases where the Court has confronted the problem of a statute or program with two or more arguable purposes, it has always looked to what the foremost effect of the challenged program appears to be. Thus, in Edwards v. Aguillard, 482 U.S. 578 (1987), the Court repeatedly made reference to the primary legislative purpose:

I do not think the examples you provide qualifies as to show “primary purpose� of the legislation is to endorse religion. I think the evidence works in both directions in some instances enough to make it very unclear as to whether or not the primary purpose was to benefit religion.

As I demonstrated in my first rebuttal, the Court sometimes does treat facts as dispositive, particularly in Establishment Clause cases. One such fact that often determines the outcome of a case is the setting in which the alleged violation takes place. The Court has always been particularly vigilant in guarding against religious encroachments in the public schools, and has consistently and explicitly declined to apply certain Establishment Clause analyses to public school problems. See last round’s post for examples, especially those that show why your reliance on Marsh is not sustainable.

Admittedly so and as I have already demonstrated in a list of cases the U.S. Supreme Court has a long tenured history of taking the reasoning in a prior case and applying them to different facts to reach an outcome. Furthermore, discussing the Establishment clause analyses the Court has refused to apply to the public school issues is irrelevant. I am arguing the instant issue through the three prong test of Lemon and the Court has consistently applied Lemon to the public school setting to resolve religious issues.

I certainly don’t “look the other way.� Rather, I focus on the issue at hand, which is not the national motto, or the Court’s opening incantation (neither of which has much to do with a public school context, and neither of which coerces anyone to say anything). Moreover, if I’ve given the impression that I feel the examples you cite are constitutionally defensible, I apologize, as that was not my intention. However, when arguing a specific issue of law, it is general practice to argue only the issue you wish to see resolved, and not peripheral matters. Finally, as to ceremonial deism, I certainly feel that neither the term nor the concept has any place in serious Establishment Clause commentary, but I realize that the Supreme Court disagrees with me, and thus argue within its strictures, and not my own. You, of course, are free (for example) to argue that Marsh ought to apply in a public school context, despite clear evidence that the Supreme Court disagrees with you, but you would unwise to leave the matter there. If you refuse to dress your argument in the trappings of the current framework, you leave yourself open to the easy counter that “the Supreme Court disagrees with you.� That is precisely what I’ve avoided by arguing that “under God� is not an instance of ceremonial deism, even as advocates of that concept would have it, despite the fact that I think it has no constitutional basis.

Focusing on the fact this is a public school context is not at all dispositive of the issue. So what the other examples do not take place in a public school. There is a purpose in illuminating them in the context of this discussion. The examples are instances of public acknowledgment of the religious traditions and heritages of our nation and not state endorsement of religion. If he POA also qualifies as one of those, then the fact the POA is recited in the public school does not magically transform it from a simple acknowledgment of our religious heritage and traditions to state endorsement of religion. You say you focus on the issue at hand but blatantly refusing to see the relevance of those examples to the instant discussion is an example of you focusing on the peripheral and not seeing the forest from the trees.
Finally, you can attempt to instruct me as to this “general practice� for the next 100 pages but the fact is you have not strictly adhered to this alleged “general practice� any more than I have. I was simply responding to something you have posted. If I diverged, it was a divergence made in response to what you posted not what I originally said.
Finally, I think your obsession in focusing upon Marsh when I have not at all argued since my opening post should send a clear indication I accept your position of Marsh as the best position in the contexts of this issue. Revisiting a case I have not cared to devote any time to in my last post is, for the reasons you have already noted, is to beat the proverbial
dead horse�.

I pulled this out of your paragraph (snipping the rest, as I feel I’ve cleared up any confusion as to the argument I’m actually making) to note the absurdity of this. Yes, you’re actually implying that the word “God� is not religious in the sense that it is diametrically opposed to a non-theistic worldview. I’m sorry, but it is. Your basic argument, I think, takes account of that fact, by claiming that the religious content is protected from invalidation by reason of its insignificance, or perhaps its gradual loss of any real meaning through rote repetition. But yes, underneath that all, there must be an acknowledgement that “God� is most definitely a religious word that describes a religious concept. Our government has appropriated that word and inserted it into a normative patriotic oath, and in the process it has taken a stance on a religious question.

Actually no, that is not what I am arguing. God is most certainly a religious term. I think most people would agree God is a religious term. However, just as the nativity scene is a religiously imbued setting, as the word God, does not mean there is a breach in the Establishment clause. Both have very strong religious connotations but this fact alone does not mean the Establishment clause has been violated. So long as Congress has a secular purpose, and they do, and the other prongs of Lemon are met, and they are, then there is no violation of the Establishment clause.
Furthermore, I have not argued that through rote repetition the word God has lost its religious significance. I think most people, even those who recite the POA, would acknowledge the word God is inundated with religious significance. However, what I have argued is through monotonous repetition whatever benefit there was to religion has been lost. Reciting the POA has become so common place, and all of its words, as to have lost not only its patriotic significance in the minds of Americans but also any benefit conferred upon religion. This does not mean the words “justice,� or “liberty,� have lost their meaning because of this repetition but only that in the minds of Americans these are just words. Similarly, the word God has not lost its religious meaning in the minds of Americans but nonetheless it is just a word like the rest and does not resonate as an instance of preferring one religion over the other.

I’ve never claimed that there’s a hard-and-fast rule about the age required to qualify as ceremonial deism. Rather, I’ve steadfastly maintained that the Marsh exception will not avail you, given that the special historical conditions simply don’t exist in this case.

Once again your focus on Marsh, when I blatantly failed to even discuss it in my second post as an indication that I would not be arguing, surfaces again in your post. Furthermore, you are taking your own statements and my reply to them way out of context. You specifically noted the distinction between the examples noted by O’Connor in Lynch and the POA was the archaic nature of her examples and the not so dated POA. I responded and your rebuttal to my response is a reference to Marsh as if I when I never relied upon Marsh in my response. You did nothing short than erect a response I never made and then attack it. So I reiterate the response I made as before. Justice O’Connor never made, nor did the Court ever in Lynch draw lines in the sand in regards to time. So your focus on the archaic nature of O’Connor’s examples and the POA is one of futility.
Furthermore, your conclusions about O’Connor’s position are erroneous given her recent concurrence opinion on the issue. I think O’Connor will continue to follow her concurrence opinion in Lynch and find the POA does not violate the Establishment clause. I am inclined to think O’Connor will view the POA as nothing more than being parallel to the examples she found not to violate the Establishment clause in Lynch. There really is little distinction between these examples she notes and the POA.

You’re right that the addition of “under God� doesn’t change the element of coercion inherent in the situation, but the inclusion of religious content does bring the Pledge into the scope of the coercion test articulated in Lee, irrespective of the fact that it is not a formal prayer, as confronted in that case. As you’ve often said, the Court frequently takes conclusions of law and applies them to situations with widely varying factual backgrounds. I agree, but I was able to produce evidence that the cases you cited have such unique factual circumstances that the Court has refused to apply them to public school cases. If you’re serious about the distinction between a formal prayer and a garden-variety government endorsement of religion that does not take the form of an invocation, please provide some case law to support the theory that they are materially different for Establishment Clause purposes.

To be exactly correct, you were able to argue Marsh would be inapplicable but not Lynch. The unique facts of Marsh would preclude extending the Court’s reasoning in that case to the public school setting and you have provided Supreme Court cases to support such a contention. This is not so with Lynch and you are going a little far in suggesting you have done so. Furthermore, your loaded language is readily apparent. Garden variety government endorsement of religion? Please spare me the dysphemisms. I never argued government endorsement of religion was constitutionally permissible. This is nothing more than another instance of you constructing a straw man argument, an argument I have never made, and then give the appearance I have actually made this argument. What I have actually argued is the POA is not an instance where the government is endorsing religion. This is a vastly different conclusion than the one you falsely attribute to me. So no I will not provide any citations of U.S. Supreme Court jurisprudence sanctioning government endorsement of religion because I have never argued this does not violate the Establishment clause.

I left this intact because I don’t want anyone to think that I’m avoiding it, but I do feel that the argument that “under God� is a historical reference is sufficiently addressed by noting that the Supreme Court has described the Pledge as “normative,� and that none of the other portions of the Pledge appear to be historical references. I’ve made this same point earlier in the post.

It can be argued the POA is completely absent any historical references and so what. The issue is not determined by whether or not the POA has in it historical references.

Feel free to illuminate whatever you’d like. I’ll note, however, that there is a certain qualitative difference in questioning a particular doctrine, as I have done, and questioning a cross-doctrinal method of evaluating statutes, as you are doing. You might also see that I’ve answered arguments that arise when one assumes ceremonial deism is good law, as I