Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Wednesday, March 24, 2004

The Pledge

The Supreme Court is hearing arguments today (as I type, I believe) in "the Pledge Case," a/k/a Elk Grove School District v. Newdow. (The Ninth Circuit's opinion under review is available here). The Pew Forum on Religion and Public Life has produced a very helpful "Issue Backgrounder" on the case (link).

Although the case raises a number of provocative, high-profile constitutional questions -- about "standing," "endorsement," "coercion," etc. -- I am afraid I have not yet been able to muster much interest. I'm not sure why. I believe that the Court will almost certainly conclude (assuming that it reaches the merits of the Religion Clause question) that the Ninth Circuit got it "wrong," and that neither the Pledge itself, nor its recitation in public schools, violates the First Amendment's "Establishment Clause." At the same time, I suspect that the reasoning provided in support for this result will be hard to take seriously. "This is ceremonial deism, not an 'establishment of religion,'" the Court will probably say. "Even with the words 'under God,' the Pledge is a patriotic, and not a religious affirmation. The term 'under God' no longer has -- if it ever really did -- any religious content or meaning."

This is, in my view, not a particularly attractive line of argument. I do not look forward to explaining to my students what I expect will be the Court's efforts to explain away the precedents on which the Ninth Circuit not unreasonably relied. ("Ten Commandments? Bad. Pledge? Good. Chaplain prayer? Good. Graduation prayer? Bad.").

In my view, the Constitution -- properly understood -- probably permits us to proclaim that we are "one Nation, Under God." The Constitution permits, for better or worse, the government to profess a vaguely theistic civil religion. Whether we *should* presume to make such a proclamation is an entirely different, and more difficult, matter. What would it mean for us to take such a proclamation seriously, I wonder? As I expect my friend, Fr. Michael Baxter of Notre Dame, would say, it's not far from an aspirational statement, i.e., "we aspire to be one Nation, under God," with all the obligations and burdens such aspirations would entail, to an idolatrous one, i.e., "we are God's Nation, and isn't God lucky to have us?"

For a very interesting argument in defense of the Pledge in its current form, see this article, "The Pledge of Allegiance and the Limited State," by constitutional-law expert Professor Tom Berg, of the University of St. Thomas.



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