JB

The Ninth Circuit Court of Appeals has issued an opinion refusing to rehear its June 2002 decision holding that the Pledge of Allegiance may not be recited in public schools if it includes the words "under God," which were added by Congressional act in 1954.

Politicians will have a field day with this one, especially as we are about to go to war.

Is the Ninth Circuit's decision correct? Well, it's not obviously incorrect, but the court could have decided the case the other way.

First, consider a much easier case. Suppose that in 1954 Congress modified the pledge to say "under Jesus Christ our Lord and Savior." There seems to be little doubt that public school teachers could not lead classes in recitation of that version of the Pledge of Allegiance at the beginning of each school day. It is too sectarian a statement. Similarly, even if the Pledge said "One Nation, with fervent belief in a God who created us all," it might seem to be too obvious an endorsement of a particular theological position. The one thing that the state may not do under the First Amendment's Establishment Clause is endorse a particular concept of religion or religious belief as the correct or official one. Nor may it create its own theological beliefs or doctrines and pronounce them as the official beliefs of the government. To do this is to violate the most central command of the Establishment Clause.

But Congress didn't do this exactly in 1954. Instead it asserted that the United States is one nation "under God." Now is this an endorsement of a religious viewpoint? Is it an assertion of a preferred or official position about a religious point of view? Well, on its face it appears to be. And given the time the amendment was made, it might well have been designed to distinguish God-fearing Americans from godless Communists in Soviet Russia.

Nevertheless, the expression "under God" might fall into a small category of situations or cases that have been called "ceremonial Deism." These are situations where people express hope or faith or trust in God through traditional and styilized invocations that have very little religious feeling to them. Ceremonial Deism is hallowed by long practice and tends to lose its religious significance over time. The idea is that it has become essentially secular and people shouldn't get too upset about it; it is just the sort of thing one is supposed to say on important occasions and we shouldn't understand it as an official religious point of view.

An example of ceremonial Deism is the use of the motto "In God We Trust" on the nation's coins. That motto is so old (and the way the sentiment is expressed is so archaic) that it seems backgrounded in social life. Nevertheless, the idea of ceremonial Deism is quite tricky, for it relies on a generalized sense of social meaning. If Congress changed the motto from the archaic "In God We Trust" to the more straightforward "We Believe in God" it might be unconstitutional, because the new motto would no longer be hallowed by long usage and it would appear to be a more direct endorsement of a religious viewpoint. What differentiates "In God We Trust" from "We Believe in God" is not that the phrases have different meanings (they actually mean pretty much the same thing) but that we would suspect that the replacement of the first with the second was motivated by a desire to impose a particular religious viewpoint. Otherwise, why change the wording?

Under this line of reasoning, Congress might well have violated the Establishment Clause in 1954 when it added the words "under God," for Americans had gotten along quite well just saying "one nation, indivisible, with liberty and justice for all" for decades. But, over time, the use of the words has become comfortable like an old shoe, and has lost its religious edge. It's purely ceremonial, and we can retain it.

Note that the doctrine of ceremonial Deism is a double edged sword. It allows state officials to acknowledge God's existence, but only by requiring them to affirm that the meaning of the acknowledgment is purely ceremonial and doesn't reflect fervent adherence to a particular religious belief. However, one suspects that many people want to invoke God's name precisely because they do have such fervent beliefs and they want other people to share in those beliefs, or, at the very least, publicly say the words that reflect such beliefs. But *that* purpose for legislation really is impermissible-- Our Constitution doesn't allow us to force our religion on other people.

If the Supreme Court takes the Ninth Circuit case, they may very well reverse the decision on the grounds I've just outlined-- that the pledge is just ceremonial Deism, and therefore doesn't mean what religious Americans want it to mean. That would be a predictable result, and an ironic one.

But the irony works in both directions. For a court to strike down the words "under God," particularly when they have been said formulaicly for decades, may have exactly the opposite social meaning-- suggesting that the court is attempting to remove God from the public square. Ceremonial Deism by its nature tries to have it both ways. It treats certain religious expressions as being both religious and not "really" religious. It justifies this on the grounds that the practice is one of long standing and its religious content has long since faded into the background. The problem, however, is then that deviating from the status quo in any direction-- making the goverment's claims more overtly religious or removing the religious language altogether-- seems to create a social meaning of non-neutrality with respect to religion. So in most cases the best thing to do with examples of ceremonial Deism is just to leave them alone.