What's the argument that the Pledge and "In God We Trust" are Constitutionally okay?

Great Debates
101

Well, legally speaking, you can thank the U.S. Supreme Court in its decision of Marsh v. Chambers 463 U.S. 783 (1983). At issue in this case was the Nebraska legislature’s practice of praying before opening legislative sessions. The prayer was led by a chaplain paid for by the taxpayers. This is a practice the First Congress of the United States began approximately in 1789. Chief Justice Warren Burger wrote for the majority.

Chief Justice Burger employed a method of interpreting the Establishment Clause which today can be accurately characterized as Originalism. Chief Justice Burger focused upon the long tradition of opening session of government with a formal prayer. More important to Chief Justice Burger’s argument was the fact the First Congress, comprised of many Founding Fathers and Framers to the U.S. Constitution, passed legislation establishing opening sessions of Congress with a moment of prayer led by a chaplain and paying them from the national treasury. "*On September 25, 1789, three days after Congress authorized the appointment of paid chaplains, final agreement was reached on the language of the Bill of Rights, S. Jour., supra, at 88; H. R. Jour., supra, at 121. 9 Clearly the men who wrote the First Amendment Religion Clauses did not view paid legislative chaplains and opening prayers as a violation of that Amendment, for the practice of opening sessions with prayer has continued without interruption ever since that early session of Congress…

In this context, historical evidence sheds light not only on what the draftsmen intended the Establishment Clause to mean, but also on how they thought that Clause applied to the practice authorized by the First Congress - their actions reveal their intent. An Act passed by the first Congress assembled under the Constitution, many of whose members had taken part in framing that instrument, . . . is contemporaneous and weighty evidence of its true meaning." Wisconsin v. Pelican Ins. Co…

It can hardly be thought that in the same week Members of the First Congress voted to appoint and to pay a chaplain for each House and also voted to approve the draft of the First Amendment for submission to the states, they intended the Establishment Clause of the Amendment to forbid what they had just declared acceptable. In applying the First Amendment to the states through the Fourteenth Amendment, Cantwell v. Connecticut, 310 U.S. 296 (1940), it would be incongruous to interpret that Clause as imposing more stringent [463 U.S. 783, 791] First Amendment limits on the states than the draftsmen imposed on the Federal Government.

This unique history leads us to accept the interpretation of the First Amendment draftsmen who saw no real threat to the Establishment Clause arising from a practice of prayer similar to that now challenged.
*

Summation…the original meaning of the Establishment Clause does not prohibit the practice of opening sessions of the legislature with a moment of prayer by a chaplain paid for by taxpayers’ dollars. This is precisely the argument Justice Scalia made in his dissent in the Ten Commandment case of McCreary County v. ACLU of Kentucky, 545 U.S. 844 (2005).

102

The above is quite true - and it is to be noted that the decision makes no reference to ceremonial deism. Indeed, conservatives have little use for the phrase in the first place except that it has crept into case law.

Personally I would go with the textual rather than the original argument, but this can be argued well without using this construct.

Let’s clear up some misconceptions. First, ceremonial deism isn’t a judicial creation, it is an academic one. It was created by Eugene Rostow, the dean of Yale Law School. Rostow was a lifelong Democrat and would later serve in the Johnson State Department. Ceremonial deism was first cited in a Supreme Court opinion by Justice Brennan, who wasn’t exactly one of the Court’s conservatives.

So if some liberals are unhappy with this now, it is very much an intramural fight.

103

But they’re excluding *the promotion of *those other philosophies, not the establishment of.

What part of it is silly? The very people who crafted the constitution were living in a country where some states had official religions.

104

There is ample judicial precedent holding that the establishment clause constitutes words to that effect.

Not true. James Madison’s original wording for the clause was "’‘The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretence, infringed.’’ This language was eventually rejected by the Senate in favor of the more ambiguous clause we have today, but it is revisionist to pretend that the first Congress would have been “completely baffled” by the idea that the clause was meant to do more than just prohibit a state-sponsored religion.

When Jefferson later wrote his letter to the Danbury Baptists and mentioned that the clause was intended to erect a “wall of separation”, he was writing in his role as President of the US. He was duty-bound to interpret the clause according to the intent of Congress, not according to his own personal interpretation. I am not aware that any of the members of Congress that wrote the clause took him to task for his interpretation.

105

So? Either the pledge is irrelevant and it could be changed to “one nation under Islam or Mormonism” or it is relevant and it shouldn’t promote any particular religious position.

What’s silly is that while the constitution places all kinds of limits on federal government the states can do more or less as they please. When your states are twice as large as many countries, I think that’s silly.

106

Huh? It doesn’t promote any particular religious position. It’s a philosophy that encompasses all monotheistic religions: Judaism, Christianity, Islam, Buddhism, Deism, many strains of Spiritualism, and I’m sure some religions I don’t know about.

But you haven’t explained why it’s silly. I’m not sure what size has to do with it. Surely you understand that restricting a federal establishment of religion, which would not give citizens any options, is quite unlike giving citizens as many options (theoretically as there are states. Again, there were different states with different official religions.

107

When Eisenhower signed the pledge law with the priest at his side, how many Hindu, Muslim or Buddhist clergy were standing there as well? Was there any opposition from those quarters or did they concur with the “under God” text?

108

I don’t know. Do you?

109

How is monotheism not a particular religious position?

Buddhism isn’t monotheistic in any realistic way, and neither (in my opinion, the point is certainly debatable) is Deism. Even if you consider Deism to be a monotheistic position the phrase “one nation under God” is certainly not compatible with it.

Yeah I understand that. I think it depends on whether you see the clause as protecting citizens or state governments.

110

Well, I suppose much of this dialogue you are presently having with Superfluous is predicated upon how one understands the Establishment Clause. If the Establishment Clause precludes the government from promoting any and all religious positions, and a supreme being or deity is most certainly a religious concept, then those phrases in the POA, on our currency, and so forth may violate the Establishment Clause.

After all, a belief in monotheism, which is belief in a single deity, is a religious belief, excluding the polytheistic religious beliefs, non-deity religious beliefs, and the belief there is no deity at all. It is rather difficult to assert the federal government is not promoting a particular religious position by the use of monotheism, because monotheism is a particular religious position. However, people like Justice Scalia do not mind making this admission and reassert their position the original meaning of the Establishment Clause did not preclude the government from making references to monotheism to the exclusion of other religious beliefs.
What I am telling you is, perhaps the best argument is not the one you are presently espousing.

111

Ahem.

112

Hard to see how it encompasses polytheistic religions, and hard to see how reference to “God” includes Buddhism and Hinduism. And how does it encompass FSM?

And before you scoff, who are you to make a value judgment about which kind of religions are of serious concern and which are frivolous?

That was a serious question, my friend, not a flip one. Discussions about laws as they were being made are an important part of discovering what the underlying intention was regardless of final wording and future interpretations.

113

Well thanks for the “nod” to the argument. Is a “nod” an acceptance that it is perfectly possible to be pro-Roe and anti-ceremonial deism without falling into some left wing hypocrisy?

114

I don’t think it is. Some religions are monotheistic, but monotheism by itself is more of a philosophical (theological) position. We can imagine myriad religions, all monotheistic, that might be in direct conflict with one another. So, it is wrong to say that the belief that there exists one god—sans flavor of that god—is a religion.

You have a valid point about Buddhism, but Deism is monotheistic. Jefferson was a Deist. You know, the guy who wrote:

I see it as protecting the citizens from a federal government that was virtually synonymous with a particular religion. As England had been.

115

Notice how you had to say “religious position” instead of “religion”? Therein lies an important distinction. Monotheism is NOT a religion. Nor is it a religious position, meaning that not all monotheistic religions necessarily share anything other than the belief in a single God, even if that God may vary wildly from religion to religion. Monotheism is a philosophical-theological position.

As far as Scalia, I agree with him. I offer this as an additional argument to the larger issue of what the Establishment Clause allows and disallows.

116

“In a god we trust” “One nation under a god”. Why, you’re right, it is just referring to generic monotheism, with no reference vague or specific to the specific diety of judeochristianity referred to by the proper name “God”. How could I have ever thought they did?

117

It doesn’t. But who says it has to? The founders were Christians and Deists. They saw value in that. While they wanted to avoid the type of situation the colonists had escaped in England, I see no reason to believe that they intended to disallow themselves from promoting a non-religion-specific philosophical belief that they though benefitted society.

Scoff? And I make no such judgements. I don’t even practice any religion.

And it was not a flip answer. Seriously. I said I don’t know because I don’t. It seemed liked you do, so I asked you. DO you know?

118

My comments had to do with the bigger issues, both the Declaration of Independence and the Establishment Clause. Is it undeniable that the two instances you mention comfortably embrace the Christian God. And that was likely the intent. But they are also broad enough to avoid being tied to one religion. “Jesus”, for instance, or “Muhammad”, would pose greater problems.

119

I’d say it was certainly the intent, and I disagree that that the proper name God is particularly inclusive. However I agree that the further we get from egregious examples like this and the closer we get to broad strokes that support all churches (like, making the entire class of them tax-exempt), the more defensible such actions are against the establisment clause.

120

No, and haven’t been able to find out yet. I was around at the time (1954) but can’t recall any controversy, which I credit to my then-ignorance and apathy more than anything else.

If someone could dig back in the newspaper archives ca. 1953-54, and could answer this question (What other non-Christian and non-faiths thought about the proposed Pledge modification) it could be an important point for Newdow et al. in the appeal. If they were OK with it, it supports the Ninth’s decision; if they were opposed, the opposite.

Surely if intent is a factor, this avenue should be explored.