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Wednesday, February 20, 2008

Is the Pledge merely Ceremonial Deism?

Last week in my law & religion seminar, we went over the Newdow case -- the infamous 9th circuit case holding that the words "under God" in the Pledge of Allegiance violate the Establishment Clause.  The Supreme Court mostly didn't reach the constitutional issue, ruling that Newdow didn't have standing, but Justice O'Connor did present a lengthy concurring opinion concluding that the phrase was part of our country's acceptable "ceremonial deism," like having "In God We Trust" on our coins -- a phrase coined by Justice Brennan in 1984.

O'Connor went out of her way to say that the point of ceremonial deism is not that it is de minimis, but that it has certain features: history/ubiquity, absence of worship/prayer, absence of reference to a particular religion, and minimal religious content.   So, even though "under God" surely flunks the Lemon test, O'Connor's own Endorsement test, and some understandings of the Neutrality principle, its status as "ceremonial deism" makes it OK.

Brennan's original formulation, though, is a bit more limited: for him, statements of ceremonial deism are those which "have lost through rote repetition any significant religious content." 

Brennan specifically included the Pledge's "under God" as an example of ceremonial deism.  But here's my question:  given the false allegations about Barack Obama's religion, and his willingness/unwillingness to say the pledge of allegiance, I wonder if "under God" is really devoid of religious content after all?   More after the jump.

Ceremonial deism is essentially meant to be a meaningless gesture that's been longstanding and of minimal religious content.  Now, "content" isn't the same as "import."  A statement may be very low in content but very high in import.  But is it really accurate to measure content by number of words and theological propositions?  Scholars of religion regularly observe that mere gestures, such as movements of the hand, can have enormous religious content, even without any words at all.  "Content" is determined by context and symbol, not just verbiage.

I've been interested for a long time in how changes in culture can lead to changes in constitutional terms.  For example, I argued, pre-Lawrence, that changes in cultural understandings of "family" had caused sodomy to become included within the family's 'zone of privacy.'  Now, I wonder if the same process may be afoot.  Insofar as the Pledge itself is connected to both religion and nationalism, I wonder if "under God" in the Pledge in fact has significant religious content, as evidenced by the anti-Obama smear, its blending of God and Country, and its disturbing resilience in some circles.

Even the outrage that greeted Newdow itself to me indicates that "under God" is meaningful.  Those words are important to people because they say something, and the something they say is indeed significantly religious.

If not saying something means so much, then doesn't saying it mean equally as much?

Posted by Jay Michaelson on February 20, 2008 at 04:35 PM in Constitutional thoughts | Permalink

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Comments

The "ceremonial deism" point is always a bit disingenuous, but not necessarily in a bad way.

Going by a strict definition of ceremonial deism, i.e. something that is essentially meaningless from a religious perspective, the very fact of litigation (and the special interest groups driving the litigation) defeats such a claim if courts were intellectually honest about it. The interest groups that want "under God" in the pledge and Christ in Christmas surely do not believe that the semantics have no meaning, or even no religious meaning.

But courts always need an escape valve from absolutist rights, because the public will only take so much, even in the name of the First Amendment. Ceremonial deism is easily understood to be the escape valve that allows activities that have broad (though never universal) social consensus to survive even if intellectually they are problematic. In the process, they provide pointly headed intellectuals like lawprofs and lawyers with unlimited fodder to debate whether ceremonial deism is internally coherent.

Posted by: TJ | Feb 21, 2008 6:56:14 PM

I'm very excited about the next Newdow case coming out sometime soon. Newdow answered your question in his briefs as best he could. Really, the statement of George Bush Sr. (though oft-repeated) says everything:

Reporter: Surely you recognize the equal citizenship and patriotism of Americans who are atheists?

Bush: No, I don't know that atheists should be considered as citizens, nor should they be considered patriots. This is one nation under God.

So tell me again how "under God" is just meaningless ceremonial deism? Similar quotes on "under God" and on "In God We Trust" abound. The only reason some people leap at ceremonial deism is because they think "Oh, maybe this way we can keep our religious phrases!"

Posted by: Chris Bell | Feb 20, 2008 5:41:02 PM

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