Kao Copulsky: The Pledge of Allegiance

29 Pages·2010·16.44 MB·English

The Pledgeo f Altegiancea nd
the Meanirgr and Limits of Civil
Religion
GraceY . Kao* and |erome E. Copulskyf
Recentc ourt challengest o the constitutionality ofteacher-led recitations of
the Pledge of Allegiance in public schools have centered on the question
whether the Pledge is to be understood as a religious or secular ritual,
given its post-1954 addition of the phrase "under God." After a brief dis-
cussion of Establishment Clause jurisprudence on this question, we argue
that the category of civil religion usefully illuminates what is at stake in
constitutional debatesa bout the Pledge and in similar rituals. We develop
four perspectivest hrough which the Pledge of Allegiance in particular,
and civil religion in general,c an be understood to function: preservationist,
pluralist, priestly, and prophetic. Thus the ongoing controversy surround-
ing the Pledge of Allegiance is best understood not as a dispute between
"believers" and "atheists," but on the contested meaning, significance, and
propriety of civil religion in America itself. In the end, we suggestt hat
even without the contested phrase, the Pledge would remain a potent
ritual of civil religion, serving all four functions, and urge further serious
study of the religious significance of the phenomenon of civil rehgron.
*Grace Y. Kao, Assistant Professor, Religious Studies Program, Department of Interdisciplinary
Studies, Virginia Polltechnic Institute and State University, 2M Major Williams Hall (0227),
Blacksburg VA 24O6i, gka@\tedu
rlerome
E C"p"lrLy, Assistant Professor and Director of Judaic Studies, Department of
Interdisciplinary Studies, Virginia Polytechnic Institute and State University, 215 l,ane Hall (A227),
Blacksburg VA 2q&, copulsky@tedu
A version of &is paper was presented at the Iaw, Religion, and Culture Consultation of the
annual meeting of the American Academy of Religion (AAR) in Phiiadelphia, Pennsylvania on
November 21, 2005. For their helpful feedback on earlier versions of this paper, we would like to
thank Brian Britt, Michael Kessler, Martin E Marty, Erik Owens, Nelson Tebbe, Jonathan Tepper,
Nathaniel Walker, Robert Yeile, and the two anonymous reviewers from the fAAR.
loumal of the Ameian Acadany of Rekgion, Spring 2007, VoL 75, No. l, pp. 121-749
doi: 10 .1 093ijaarelll-fl0 65
o The Author 2007. Published by Orford University Press,o n behalf of the American Academy of
Religion. A11r ights reserved-F or permissions, please e-mail [email protected]
Advance Access publication on February 14 2007
122 lournal of the American Academy of Religion
The Pledge of Allegiance is revered today by most Americans. It is
recited on a daily basis by millions of public school chiidren and their
teachersi n classroomsa crossu ll fiftr states.I t concludese very naturali-
zation ceremony. The u.s. senate opens each legislative sessionw ith a
collective recital of the Pledge.t Many school boirds, city councils, and
community organizations (e.9. American Legion, Elks, Masons, Boy
scouts) incorporate recitations of the Pledge of Allegiance into their
official meetings. The Pledge has become the most popular and
recognizable of American civil ceremonies. It has also,- arguably,
accruedr eligious significanceb ecauseo f its theological referent.
.. Things were not alwayss o. From its birth in 1892 to l954,the pledge of
Allegiance made no mention of "God." Baptist minister and chriitian
socialist Francis Bellamy had composed the original version for the
september 8 issueo f The Youth's companion's quadricentennial commem-
oration of christopher c.olumbus's arrival in the Americas. The pledgew as
then modified severalt imes during the National Flag conferen.er oi 1923
and. 1924, until Congressw rote fhis version into federal law on lane 22,
I9M: "I pledge allegiancet o the Flag of the United Stateso f America and
to the Republic for which it stands,o ne Nation indivisible, with tiberty and
justice for all." On |une 14, 1954, after a successfi.rcl ampaign by &e
(Catholic) Knights of C,olumbus and an influential sermon by u
*under
Presbyterian ministeq C,ongressa dded the phrase God," and in so
doing embeddedb elief in God as well as the nation's subordinate relation-
ship to that God within an expressiono f fidelity to the state.z
On |une 26, 2002, in responset o a legal challenge by Dr. Michael
Newdow, a divided three-judge panel of the United States Court of
Appeals for the Ninth Circuit ruled that the words "under God" in the
Pledge of Allegiance violate the Establishment clause of the First
Amendment to the U.S. Constitution.3 The public reaction to the
' On |une 23, 1999, the Senate unanimousiy agreed that one Senator wou.ld lead the entire
Senate in reciting the Pledge of Aliegiance at the start of each iegislative session (S. Res. 113, 145
cong. Rec. s 745i). In 1989, both the House and the senate designateds eptember g, 1989 as our
National Pledge of Allegiance Day, so as to commemorate the piedge of Allegiance's first
appearancei n print on September8 , 1892 (P.L. 101-90, H.J. fus. 253).
' The Reverend George Macpherson Docherty delivered a Sunday sermGn on this matter on
Ieb.ru|ry 8, i954 at washington's New York Avenue Presblterian church, to a congregation that
inciuded President Eisenhower and the First Lady (Ellis 2005: 103-105). The irit tert of this
setmon can be found at http://www.nyapc.org/congregation/sermon_Archives/?month=1954-02.
' lVe will use the same abbreviations that the Supreme C,ourt used when it elected to review tiis
case. Newdow I (Newdow v. u.s. c,ongress,2 92 F.3d 597 (cA 9 z00z)) refers to the orsinal Ninth
Circuit Court decision. Newdow II (Newdow v. tLS. Congress,3 ij F.3d 500 (CA S Z"0OZ)i), *
order by, the california Superior c,ourt enjohing Newdow from inciuding his daughter as an
unnamed party or suing as her "next ftiend." Newdow III (Newdow v. rJ.s. c,ongress,32g F.3d 466
Kao Copukky: The Pledge of Allegiance 123
ruling was immediate and overwhelmingly negative. The following
day, the U-S. Senatev oted unanimously io affirm the exact wordin!
-
of the Pledge and the House of Representativesp asseda similar resl
olution, 416-3. On the day that the Supreme Court actually heard
oral argumentsi n Elk Grove unified Sch. Dist. v. Newdaw,542 U.S. 1
(2004) (hereinafter "Elk Grove v. Newdow"), an Associated press poll
F*d that nearly nine in ten American (87o/o)w anted the phiase
"under God" to remain in the Pledge. The Supreme Court, however,
has yet to affirm or deny the permissibility of teacher-led recitations
of the current text of the Pledge, since they ultimately ruled on pro-
cedural grounds of Dr. Newdods standing as a noncustodial parent
and not on more substantivei ssuesc oncerning the First Amendment.
Thus the legal controversy surrounding the Pledge of Allegiance is
far from over, especiallyi n the light of Newdow's iontinued litigation
on this same issue, now with co-plaintiffs whose legal standing is not
in dispute.a
This essaye xamines,t he meaning and significance of the ongoing
cg1lroversy about the Pledge of Allegiance through the analpical leni
of "civil religion." In Part I, we discusst he phenomenon of ;'civil reli-
gion" and identi{' the Pledge of Allegiance as one of its key rituals in
American life. In Part II, we examine the way the religious content of
the Pledge has been construed by the courts and other parties. We
contend, in Part III, that the ongoing controversy surrounding the
Pledge of Allegiance is best understood not as a dispute between
"believers" and "atheists," but as a struggle over the melning, signifi-
cance, and propriety of civil religion in America. To that end, we for-
mulate and evaluate four distinct, but not necessarily mutuallv
exclusive,m odes of civil religion-preservationist, pluralist, priestly, ani
prophetic-and consider the meaning and desirability of the pledge of
(CA 9 2003)) is the amended vercion of Newdor'r I plus the Ninth Circuit's deniai of rehearing err
banc.Unless otherwise stated,a li subsequentr eferencest o the Ninth Circuit decision wiil be to this
amended opnion (Newdow II4. (A1l casec itations designate( t) the pa*ies, (2) tbe volume number
of the reporter in which tre case appears, (3) the name of the reporter, (4) t},e page on which the
case beg.ins,a nd (5) the year the decision was rendered.)A Iso, please note here 'f.3d" stands for
Fead eralR eponer. 3'd seriesa nd "CA 9" for the llnited StetesC oui of Appealsf or the Ninth Circuit.
After the 2004 Supreme C,ourt ruiing, Michael Newdow filed a simliar suit on behalf of several
unnamed parents and their children (Newdow v. C,ongress(N o. Civ. 5-05-17) (E.D. Cal)). On
September 14,2005, U.S. District Judge lawrence Karlton in Sacramento concluded that he was
bound by the Ninth Circuit's previous decision in2O03 ("Nevrdowl ll"),which could put this issue
on track for another round at the Supreme court. However, on August 10. 2005, a three-judge
panel on the 4th circuit court of Appeals ruled in Myers v. Loudoi c,ounty pub. sch. tN6. ol-
11q4) that a Virginia statute providing for daily recitation ofthe Pledge ofthe Allegiance does not
violate the Establishment clause, becauset he addition of the "under God," though religiously
significant, does not alter the nature ofthe Pledge as a patriotic activity.
124 lournal of theA mericanA cademyo f Religion
Allegiance from each of these angles. The Pledge of Allegiance will
most likely continue to servea s a ritual of civii religion regardlesso f the
inclusion-or removal-of the phrase "one Nation under God."
Neverthelessi,n Part IV we explain the shortcomings of the priestly and
preservationisti nterpretations, show how the current version's religious
language compromises its ability to serve both pluralist and prophetic
functions, and submit that these problems could be alleviated by a
reversiont o its pre-1954t ext.
THE CONCEPT OF CIWL RELIGION AND THE PLEDGE
OF ALLEGIANCE AS A KEY RITUAL
According to Robert Bellah's influential 1967 essay" Civil Religion
in America," there is a "religious dimension" of American life that has
emerged alongside of denominational religion while remaining dis-
tinguishable from it. This religiosity provides a "genuine apprehension
of universal and transcendent religious reality as seen in or, one could
almost say,a s revealedt hrough the experienceo f the American people"
(1991: 168, I79).' Civil religion in America utilizes key biblical tropes
(e.g. chosen people, covenant, promised land, the Exodus, sacrificial
death, and rebirth) to interpret the nation's history central institutions,
present circumstances,a nd destiny. In short, America-envisioned as
the "new Israel"-is to "be a society as perfectly in accord with the will
of God as men can make it, and a light to all the nations" (1991: 186;
cf. Cherry 1998:8 -21).
If Bellah is correct, crucial historical moments and civic rituals do
not merely exist to underwrite a senseo f patriotism or national solidar-
itp they also affirm the theological claim that the nation and the state
are not absolute unto themselves,b ut subject to divine authority. As
Bellah writes in reference to President |ohn F. Kennedy's inaugural
address," in American political theory, sovereigntyr ests,o f course, with
the people, but implicitly, and often explicitly, the ultimate sovereignty
has been attributed to God" (1991: I7L).
The scholarly literature on civil religion in general,a nd in America
in particular, is quite extensive and cannot be adequately surveyed
t S* y BelJah1 974, 1976a 7976b, 1976c, 1980, 1986, 1987, lggl (cIg67), r9g2 (c1g75),
and 200"0q fpo"r. t"mlfo re on his understanding of civil religion. To be sure, our focus on Bellah is not
meant to suggest that he is the originator of the idea. Earlier and alternative conceptions of either
civic or civil religion can be found in the work of Machiavelli, Hobbes, Spinoza, Rousseau,
Tocqueville, and Durkheim, among others (see,e .g. Beiner 1993 for a comparison of some of these
thinkers). The modern locus classicuso f the term is Rousseau'sd iscussion in "Of the Social
Contract," Book IV.
Kao Copulsky: The Pledge of Allegiance 125
here.6I n this essayw, e use the term "civil religion" to refer to a q,rnbolic
system that binds members of a political community to one another
through shared historical narratives,m 1.ths,r ituals, and some notion of
transcendence( e,g.t he people, the nation, its overarchingv alues,a ndlor
God). Regardedf unctionally, civil religion can "provide sacredl egitimati
[on] of the social order" by integrating society's members, mobilizing
them and their resources,a nd endorsing important sociai and political
institutions and authorities (Liebman and Eliezer 1983: 5). While we
can detect the existenceo f civil religion in the political sphere (e.g. in
the speecheso f political leaders) as well as in popular culture (e.g. the
bumper sticker "God BlessA merica"), the presencea nd activity of civil
religion in some instancesi s either expresslym andated by law, or other-
wise-endorsedb y federal, state, and local governmentst hrough official
holiday celebrations,p arades,i naugurations,a nd other rituals.
To be clear, civil religion is not the same as a state (or established)
religion. Nor. is it identical to what others have called "public religion,"
by which individual or communal religious actors or groups comment
on matters of public concern in the public sphere (Dean 1994;
Weintraub and Kumar 1997; MarW and Blumhofer 2005). The sphere
of civil religion is narrower, concerning itself with the polis ot political
community. There is, of course, a semipermeablem embrane between
and among "private" religious commitments, public religion, and civil
religion in America. Indeed, "public religion" can either cbmplement or
challengec ivil religion. Stiil, while the boundaries here are often ambig-
uous, it is possible and desirable to distinguish between "public reli-
gion" and a "civil religion" that operatesi ndependently of traditional
religious communities or institutions-especially when civil religion
receivess tates ponsorshipo r support by its agents.
In the case of the Pledge of Allegiance, we are considering a very
visible, indeed, perhaps the most ubiquitous, instance of Ameriian civil
religion-a practice expressly endorsed by the state and ritually
re-enactedn early every day when public schoolsa re in session.
THE PLEDGE OF ALLEGIANCE IN LIGHT OF
ESTABLISHMENT CLAUSE IURISPRUDENCE
, To grasp the nature of the debate requires abrief prdcis of the field
of contestation. The "religion clauses"o f the First Amendment to the
6
For a small but diverses amples eeB ellaha nd Hammond1 980,G ehrig 1981,D emeratha nd
Williams 1985,H ammond 1994, Potterfield,M oselry,a nd Sama 1994l,n grosino 2A02,p evt
Forum on Religiona nd Public Life (2002)a nd Stackhouse2 004.
126 Iournal of the American Academy of Religion
U.S. Constitution provide: "Congress shall make no law respecting an
establishmento f religion, or prohibiting the free exerciset hereof." The
first portion, or what is generally referred to as the "establishment
clause," was made applicable to the states by the Fourteenth
Amendment in Everson v. Board of Education, 330 U.S. 1 (1947).
Michael Newdow, the atheist father behind Elk Grove v. Naudaw, has
contended that teacher-led recitations of the Pledge of Allegiance
in public schools amount to a governmental stamp of approval of
monotheism and accordingly conflict with that clause.
To understand that the meaning of the EstablishmentC lause,o r the
well-known principle of "separation between church and state," is not
self-evident, it would be helpfirl to review the various tests that the
Supreme Court has historically relied upon to determine the extent of
permissible state conduct: the Lemon, endorsement,a nd coercion tests
(McConnell et al. 2A06). Under the three-pronged test first articulated
in Lemon v. Kurtzman, 403 U.S. 602 (197I), a case involving aid to
church-related schools,t he Court determined that government conduct
(1) must have a legitimate secularp ulpose, (2) must have a principal or
primary effect that does not advanceo r inhibit religion, and (3) cannot
foster an encessiveg oyernment entanglementw ith religion. In the well-
known crdche case Lynch v. Donnelly, 465 U.S. 668 (i984), |ustice
Sandra Day O'Connor introduced the "endorsement" test-a test that
prohibits government from creating "insiders" and "outsiders" to the
political community by showing either endorsement or disapproval of
religion. In two subsequentc asesi nvolving religious displays on public
property, Allegheny v. the ACLU, 465 U.S. 573 (1989) and Capitol
Square Review and Advisory Bd. v. Pinette, 5i5 U.S. 753 {1995),
O'Connor further clarified that "endorsement" would be determined by
the 'reasonableo bserver" standard. Finally, the 'coercion" test, the idea
that government may not coerce anyone to support or participate in
religion, was advanced by |ustice Anthony Kennedy in the graduation
day school prayer at issue in Lee v. Weisman,5 05 U.S- 577 (1992). Tt is
worth underscoring that these tests are constantly being scrutinized,
modified, defended,a nd even rejected( in whole or in part) by Supreme
Court |ustices themselves.A dmittedly, in a prior case regarding the
constitutionality of a Pledge of Allegiance school policy-Sherman
v. Community ConsolidatedS chool District 21, 980 F.zd 437, 446-48
(7th Cir. 1992)-the judges did not utilize the various tests established
by the Supreme Court to determine the constitutionality of the Pledge
of Allegiance, but relied upon on dicta within previous Supreme Court
decisions to conclude that no part of the Pledge of Allegiance is
unconstitutional.
Kao Copulsky: The Pledge of Allegiance 127
with an eye toward determining whether an Establishment clause
violation has in fact occurred, the courts, filers of the amicus curiae
briefs, the executive branch of the Federal Government, and some
legislators have offered 1 wide range of opinions concerning the
religious significance (or lack thereof) of the contested phrase in th"
Pledge.
The Pledge of Allegiance as a Religious proclamation
While some have dismissed the referencet o God in the pledge of
Allegiance as too generic to be constitutionally problematic, the Ninth
circuit sided with Newdow. They found the state-supported phrase,
"one Nation under God," to be a religious profession thlt was identi-
cal, 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,"' becausea ll those professions fail the test of
religious neutrality (Newdow III at 487). Even though Elk Grove
unified School District (EGUSD) did not compel its students to
recite the Pledge of Allegiance, the Ninth circuit found that their
Pledger ec-itationp olicy'impermissibly coerce[d] a religious act" (Id. at
487,490).'
Supreme Court fustice Clarence Thomas not only agreed \{rith the
Ninth circuit that the Pledge involves a religious profeision (through
its affirmation of the existenceo f God), but also that the practicesi n
question must be regarded as "coercive." In fact, for Thomls, teacher-
led recitations of the Pledge in public schools pose even more serious
difficuities than the "coercion" that was struck down as unconstitutional
in Lee v. Weisman (1992). For "[p]rayer at graduation is a one-time
event, the graduating students are almost (if not already) adults, and
their parents are usually present,' while very young students who are
'lemoved from the protection of their parents" are exposedt o recitals
of the Pledge of Allegiance on a daily basis (EIk Groie v. Newdow at
75). But fustice Thomas did not use this shared assessmentto support
the Ninth Circuit, but to argue that the precedentsi n question were
wrong-that the Supreme Court's ruling in Lee v. Weismqn "depended
on a notion of 'coercion' that ... has no basis in law or reason."I n
short, Thomas interpreted the "text and history of the Establishment
Clause" as a "federalist provision intended to prevent Congress from
' l" W**;rginia v. Bornette,3ig U.S. 624 (tg43),students finaliy won the right to abstain
from either saluting or pledging allegiance to the flag over ten years beiore the 1954 insertion into
the Pledge ofthe phrase "under God."
128 lournal of the American Academy of Religion
interfering with state establishments,'w hich is why he concluded that
it ought to resist incorporation (Id. at 80*88).8
Others sought to defend the constitutionality of the pledge of
-_
Allegiance in ways that do not deny its religiosity but are not premised
on Thomas's radical account of constitutional law. In his dissent to the
majority decision of the Ninth circuit, |udge Fernandezd enied that the
current text of the Pledge would either lead to such balefirt effects as
religious discrimination or "bring about a theocracy" (Newdow III at
49L-492). Moreover, should we lose our ability to recite the pledge of
Allegianc_e-inp ublic schoolso r to "us[e] our album of patriotic songsi n
many public settings,"w e would forfeit
a vestigeo f the awe all of us, including our children, mtst feel at the
immensenesosf the universea nd our own smallp lacew ithin it, as well
as the wonderw e must feel at the good fortune of our country.T hat
will cool the febrilen erveso f a few at the costo f removingt he healthy
glow conferredu pon many citizens when the forbidden verses,o r
phrasesa, reu ttered,r ead,o r seen( Id. at 492-493e, mphasisa dded).
!9ryandry e_ssentiallayd vocatedf or the use of religious languagei n the
Pledgeo f Allegiance and in other ceremoniesf or the purposes of "civil
religion"-to infuse ordinary patriotic activities with a sense of
transcendence.
Other approaches tried to articulate more concretely the civic
importance of the phrase "under God" in ways that neither denied its
religiousness,n or ran afoul of the Establishmentc lause. some invoked
the Deciaration of Independence's claim that God endows us with
certain inalienable rights as part of a larger argument that a concept of
divinity is indispensable for America's most cherished political doc-
trines of individual liberty and limited government. still others claimed
that the current wording of, and current practicesr egarding, the pledge
serve as an ongoing reminder that God has blessed the American
nation and that this blessingi s not unconditional.e
As we have seen, the phrase "under God" in the context of the
Pledge of Allegiance is so ambiguous as to permit all of these
\"...p".ti"n is the legal doctrine whereby provisions of t}re Bill of Rights are made applicable
!o the states through the Due Process Clause of the Fourteenth Amendment. The fstabliihment
Clause was first "incorporated" or made enforceable to the states in Everson v, Board of Education,
330 U.S. | (1947).) usticeT homas'sr eadingo f the EstablishmenCt lausea s a federalistp rovisionj s
shared by Steven D. Smith (1999), Geddicks (20M: 997-999), and McC-onnell et al. ea06\,
among others.
' See Kao 2aa7 for a discussion of the relevant amicwbriefs. see 148 cong. Rec. 56100-6112
(daily ed., lune 26,2002) for o<ampleso fthese arguments from selectedS enatori.
Kao Copukky: The Pledge of Allegiance 129
interpretations and still others. or perhaps it is more accurate to say
that all of these interpretations can be "riad into" the pledge. A[ arl
clearly attempts to give the phrase "one Nation under God" some real
theological and political import. Notwithstanding the various reasons
why the phrase might be consideredt o be of greai theological,p oliticar,
and_s ocial consequence,t he question of its permissibility under the
Establishment clause still remains. we will also return, in part III, to
the limitations of some of these religious defenseso f the pledge of
Allegiance fiom the perspectiveo f religious traditions.
The Pledge of Allegiance as a Secular Rituai
The legal strategyt hat the Bush Administration and others took to
defend the constitutionality of the Pledge of Allegiance's contested
phrase was to minimize or even deny its religious import altogether.
u.s. solicitor General red olsen argued that the phrase "one Nation
under God" in the Pledge should be understood in a descriptive, not
-historical
norrnative fashion-as merely acknowledgingt he "undeniable
facts that the Nation was founded by individuals who believed in God"
(U.5. ,Brief at 33). The late Chief fustice Rehnquist agreed,s rrggesting
that the phrase "ore Nation under God" is simply one of many;patrio-
tic invocations of God and official acknowledgemento f religion s role
in our nation's history" requiring only "fidelity to our flag and our
Nation, not to any particular God, faith, or church" (btk Grove
v. Newdow at 4I-42, 49-50). He provided a number of exampleso f like
invocations, such as Lincoln's use of the words "under God" ln his
Gettysburg A!!1ess_a nd The SupremeC ourt's Court Marshal's opening
proclamation ("God savet he united statesa nd this Honorable court")l
- _ A segularr eading of the Pledgeo f Allegiancew as also sharedb y the
National school Boards Association (NSBA), who claimed thai the
ghragg in question "neither suggestsn or requires supplication to a
deity' (Br. for NSBA at 2-3).If petitioner EGUSD is to be believed,t he
Ple{Se does not even take a position on the perennial question, "Does
God exist?" (Elk GroveR eplyB r. at t6: cf. Kao 2007).
, Doe,st he phrase "under God" in the Pledge of Allegiance merely
acknowledge the role that religion has played in Ameriian history-
without even presuming the existence of God? such an interpretation
appears to be unwarranted since the Pledse makes no mention of the
nation's history o-r any of the aforementiorrld This "acknowledg-
ment-but-not-endorsement"s trategyr ejects the"r rp"rlratirn. senseo f the con-
tested phrase, which clearly implies both the existence of, and the
nation's dependenceo n, God. President Eisenhowers eemedt o state as
130 lournal of the American Academy of Rcligion
much when he signed the Pledgeb ill into law in 1954 with thesew ords:
"[MJillions of our school children will daily proclaim in every city and
town, every village and rural schoolhouse, the dedication of our nation
and our peoplet o the Almighry' (100 Cong. Rec. 8618 (1954)).T hose
lvho offer a completely seculari nterpretation of the post-1954v ersion of
the Pledge appear disingenuous when they claim that there is no actual
appeal to God, but merely a referencet o unmentioned referencest o God.
This was pointed out indirectly by Michael Newdow; when he was asked
during oral arguments before the supreme c,ourt about the elasticity of
*I
the meaning of the phrase, he responded: don't think that I can
include 'under God to mean 'no God', which is exactlyw hat I think."
The Pledge of Allegiance as "Ceremonial Deism"
There is an intermediary position between interpreting the pledge
of Allegiance_ a s theologically significant and denying 1ts religioirs
import altogether. It is to regard the Pledge of AllegianCea s an essen-
tially secuiar, patriotic ritual whose meaning and pbwer are enhanced
by its (post-L954) theological referent. (This seemJto be behind |udge
Fernandez'ss uggestiont hat the phrase "one Nation under God" confels
a "healthy glo*.")
Supreme Court |ustice Sandra Day O'Connor attempted to de-
sacralizet,h e phrase "under God" while simultaneously co-opting the
power of religious rhetoric to inculcate loyalty to the state.S he defended
the constitutionality of the Pledgeo f Allegiance in terms of "ceremonial
deism" (Newdow III at 492; Elk Grove v. Newdow at 6A-7A). The term
"ceremonial deism" was coined in 1962 by Eugene V. Rostow, Dean of
Yale Law school, and used by |ustice Brennan in his dissenting opinion
in the crdchec aseo f Lynch v. Donnelly,465 US 668 (1934). Brennan
defined "ceremonial deism" as practiceso r referencesth at are
protectedfr om EstablishmenCt lauses crutinyc hieflyb ecausteh ey have
lost through rote repetitiona ny significantr eligiousc ontent... land
that] are uniquely suited to serves uch wholly secularp u{posesa s
solemnizingp ublic occasionso,r inspiringc ommitmentt o meet some
nationalc hallengein a mannert hat simplyc ould not be fully servedin
our culturei f governmenwt erel imited to purelyn on-religiousp hrases.
(45sU .S.a t716-717)
Following Brennan, O'C,onnor concluded that the phrase in question
can remain, since no "reasonableo bserver" of current practices con-
cerning the Pledge would understand them to be signifring any "gov-
ernment endorsement of any specific religion, or even of religion over