LEXIS�-NEXIS� Academic Universe - Document

Search Terms: civil religion

Document 94 of 436.

Copyright (c) 1996 The Columbia Law Review

Columbia Law Review

December, 1996

96 Colum. L. Rev. 2083

LENGTH: 56157 words

ARTICLE: RETHINKING THE CONSTITUTIONALITY OF CEREMONIAL DEISM

Steven B. Epstein *

* Visiting Assistant Professor, University of Illinois College of Law. B.A.

University of North Carolina at Chapel Hill, 1987; J.D. University of North
Carolina School of Law, 1990. For their comments and suggestions on earlier
drafts of this Article, I am deeply grateful to Morris Goldstein, Douglas
Laycock, Andrew D. Leipold, Ira C. Lupu, Deborah J. Merritt, James E. Pfander,
and Ronald D. Rotunda, whose personal views do not necessarily accord with those
presented here. I am also indebted to Patricia Lee from the Columbia Law Review
for first-rate editorial assistance which significantly enhanced the quality of
this Article and to Mary Ellerbe and Sally Cook for invaluable secretarial
assistance. I dedicate this Article to my incredibly supportive wife Lori J.
Nelson and to our pride and joy, Benjamin.

SUMMARY:
... Elementary school students in most public school systems begin each day
with the Pledge of Allegiance in which they dutifully recite that America is one
nation "under Allah;" our national currency - both coins and paper - contains
the inscription codified as our national motto, "In Allah We Trust;" witnesses
in court proceedings and public officials are sworn in by government officials
asking them to place one hand on the Koran and to conclude "so help me Allah;"
presidential addresses are laced with appeals to Allah; federal and state
legislative proceedings begin with a formal prayer typically delivered by a
Muslim chaplain in which supplications to Allah are unabashed; state and federal
judicial proceedings - including proceedings before the United States Supreme
Court - begin with the invocation "Allah save this Honorable Court;" and,
pursuant to federal and state law, only Muslim holy days are officially
celebrated as national holidays. ... After all, the argument typically goes, if
practices such as the Pledge of Allegiance to a nation "under God," legislative
prayer, the invocation to God prior to court proceedings, and the Christmas
holiday are permissible notwithstanding the Establishment Clause, then surely
the practice at hand (be it a nativity scene, commencement invocation, or some
other governmental practice) - which does not advance religion "any more than"
these accepted practices - must also pass muster under the Establishment Clause:
... In Engel v. Vitale, the Court's first school prayer case, Justice Black
distinguished the prayer declared unconstitutional therein from permissible
public practices that acknowledge a belief in God; Black wrote that "such
patriotic or ceremonial occasions bear no true resemblance to the unquestioned
religious exercise that the State of New York has sponsored in this instance."
... Practices like the courtroom oath and the Pledge of Allegiance in the
schoolroom are excellent examples of just how coercive ceremonial deism can be
for those who do not believe in or are opposed to these practices. ...

TEXT:
[*2083] [*2084]

Introduction

The year is 2096. Due to radically altered immigration and birth patterns over
the past century, Muslims now comprise seventy percent of the American
population, while Christians and Jews comprise only twenty-five percent
collectively. n1 Elementary school students in most public school systems begin
each day with the Pledge of Allegiance in which they dutifully recite that
America is one nation "under Allah;" our national currency - both coins and
paper - contains the inscription codified as our national motto, "In Allah We
Trust;" witnesses in court proceedings and public officials are sworn in by
government officials asking them to place [*2085] one hand on the Koran and to
conclude "so help me Allah;" presidential addresses are laced with appeals to
Allah; federal and state legislative proceedings begin with a formal prayer
typically delivered by a Muslim chaplain in which supplications to Allah are
unabashed; state and federal judicial proceedings - including proceedings before
the United States Supreme Court - begin with the invocation "Allah save this
Honorable Court;" and, pursuant to federal and state law, only Muslim holy days
are officially celebrated as national holidays. n2 Surely this scenario could
not be squared with the First Amendment to the United States Constitution.
Surely any court addressing these practices would conclude that the federal and
state governments behind them have impermissibly sought to "establish" the
religion of Islam. Right? Not necessarily. To date, every court that has
analyzed these types of governmental appeals to the deity, albeit in Christian
or Judeo-Christian form rather than Muslim form, has assumed as axiomatic that
they do not encroach upon the Establishment Clause n3 of the First Amendment. n4
While striking down a mildly theistic New York school prayer in 1962, n5 the
passive display of the Ten Commandments in Kentucky schools in 1980, n6 and a
moment-of-silence law in Alabama in 1985, n7 the Supreme Court has either held
explicitly, n8 or implied in dicta, n9 that the forms of "ceremonial deism"
described above are immune from constitutional scrutiny. [*2086] Yet the
prevailing current of United States Supreme Court jurisprudence is that, at its
core, the Establishment Clause "precludes government from conveying or
attempting to convey a message that religion or a particular religious belief is
favored or preferred" n10 and prohibits government expressions of religion which
result in American citizens feeling like outsiders in their own country. n11 In
sponsoring the practices described in the opening paragraph, is the government
not conveying a message that religion generally, and the Islamic religion in
particular, is favored or preferred? Would the average Christian or Jew
seriously contend that this America of 2096 would not make them feel like
outsiders in their own country? n12 How then can Christians and Jews reconcile
this feeling of exclusion with approval of a state of affairs in 1996 in which
non-Christians, non-Jews, and nonreligionists have no constitutional basis for
attacking "ceremonial" Christian or Judeo-Christian forms of government
expression? More to the point, how can the Supreme Court continue to countenance
these practices? The implications of ceremonial deism are far-reaching because
courts frequently employ this amorphous concept as a springboard from which to
hold that other challenged practices do not violate the Establishment Clause.
After all, the argument typically goes, if practices such as the Pledge of
Allegiance to a nation "under God," legislative prayer, the invocation to God
prior to court proceedings, and the Christmas holiday are permissible
notwithstanding the Establishment Clause, then surely the practice at hand (be
it a nativity scene, commencement invocation, or some other governmental
practice) - which does not advance religion "any more than" these accepted
practices - must also pass muster under the Establishment Clause: n13 [*2087]

Major Premise: These traditional practices obviously pass constitutional muster

(otherwise we would not have tolerated them for so long).

Minor Premise: The practice at hand does not advance religion any more than
those which pass constitutional muster.

Conclusion:[sp'ise:'] The practice at hand must pass constitutional muster.

This syllogistic reasoning has been aptly named the "any more than" test. n14
Its central flaw is that no court has ever squarely and faithfully probed the
validity of the major premise under the Supreme Court's long-standing
Establishment Clause jurisprudence. n15 If the major premise is invalid, a court
may not properly conclude that a challenged practice is permissible merely
because it advances religion no more than the long-standing practices embraced
by that premise. Not surprisingly, the "any more than" approach has yielded an
ever expanding sphere of activities courts have found to be permissible forms
[*2088] of ceremonial deism. Each step in the process is valuable ammunition
for the next. n16 Thus, in addition to the Pledge of Allegiance, the national
motto, the invocation to the deity prior to judicial and legislative
proceedings, and similar practices described in the opening paragraph, courts
have found permissible (1) prayers at high school n17 and college n18
graduations, (2) government-sponsored nativity scenes, n19 (3) religious symbols
displayed on government property n20 or embedded in government seals, n21 (4)
the public holiday of Good Friday, n22 and several other governmental practices
embracing religion. n23 As we proceed further and [*2089] further down this
slippery slope, n24 it is increasingly apparent that two distinct and
incompatible doctrines are driving Establishment Clause jurisprudence, one
purporting to invalidate practices in which the government endorses religion n25
and the other validating the exact same practices if they fit within the above
syllogism. n26 As the latter doctrine expands its coverage, the former
necessarily contracts. Consequently, one must seriously consider how long it
will be until the latter eviscerates the former altogether, if it has not done
so already. n27 Despite its increasing significance in Establishment Clause
litigation, the concept of ceremonial deism has received only scant scholarly
attention. Like the courts, most scholars have assumed that the majority of
practices constituting ceremonial deism are innocuous and inconsequential in the
grand constitutional scheme. n28 No commentator has systemati- [*2090] cally
analyzed the constitutionality of the various practices constituting ceremonial
deism to determine whether the major premise to the syllogism authorizing an
expanding universe of governmental religious activity is valid or flawed. That
is what I seek to do in this Article. Part I develops a working definition of
ceremonial deism from several Supreme Court opinions that have touched upon the
topic. It then uses that definition to categorize practices that constitute
"core" and "fringe" ceremonial deism. Part I also compares ceremonial deism to
the related concept of "civil religion." Part II traces the roots of ceremonial
deism back to colonial America and to the established European churches from
which colonial Americans fled. Part II then places each of the core forms of
ceremonial deism in its own historical perspective and illustrates its
continuing significance in modern American society. Part III briefly discusses
several Supreme Court decisions critical to an under- [*2091] standing of the
Court's current Establishment Clause jurisprudence. It then applies that
jurisprudence to the core forms of ceremonial deism and concludes that most of
what has gone unchallenged or undisturbed for decades or centuries cannot pass
muster under the Court's prevailing doctrine. Part IV critically examines
several arguments which have been raised in support of finding such practices
constitutionally permissible and rejects each as flawed. The Article concludes
by arguing that the Supreme Court can and should hold most forms of ceremonial
deism to be unconstitutional.

I. What Is Ceremonial Deism?

A. Background

The phrase "ceremonial deism" was coined by former Yale Law School Dean Walter
Rostow in a 1962 lecture he delivered at Brown University. As reported by
Professor Arthur Sutherland in 1964, Rostow reconciled the Establishment Clause
with a "class of public activity, which ... could be accepted as so conventional
and uncontroversial as to be constitutional." n29 Rostow labeled this class of
public activity "ceremonial deism." n30 Deism in America was a product of French
intellectual thought in the eighteenth century n31 and had among its fundamental
principles the existence of a Supreme Deity, worthy of adoration, and the
necessity of religious liberty. n32 It also eschewed theological and
ecclesiastical extremes. n33 One of deism's most ardent American proponents was
Thomas Paine. n34 According to Paine, "deism, from the Latin word Deus, God, is
the belief of a God, and this belief is the first article of every man's creed."
n35 Dean Rostow's combination of "ceremonial" with "deism" was probably intended
to refer to expressions of and to God in ceremonial, as opposed to theological,
settings. Yet this literal definition gets us only so far. It is more helpful to
examine the Supreme Court's use of the phrase. The phrase has explicitly
appeared in only two Supreme Court opinions, the nativity scene cases of Lynch
v. Donnelly n36 and County of Allegheny v. ACLU. n37 In his dissent in Lynch,
Justice Brennan suggested that prac- [*2092] tices like "the designation of
"In God We Trust' as our national motto, or the references to God contained in
the Pledge of Allegiance to the flag can best be understood, in Dean Rostow's
apt phrase, as [] form[s of] "ceremonial deism,' protected from Establishment
Clause scrutiny chiefly because they have lost through rote repetition any
significant religious content." n38 Justice Brennan stated that these practices
are "uniquely suited to serve such wholly secular purposes as solemnizing public
occasions, or inspiring commitment to meet some national challenge in a manner
that simply could not be fully served in our culture if government were limited
to purely nonreligious phrases." n39 He opined that such practices are "probably
necessary to serve certain secular functions, and that necessity, coupled with
their long history, gives those practices an essentially secular meaning." n40
Similarly, in Allegheny, the plurality opinion referred to legislative prayer,
the Court's own invocation, and the inclusion of God in the national motto and
Pledge of Allegiance as examples of "ceremonial deism," "a form of
acknowledgment of religion that "serves, in the only way reasonably possible in
our culture, the legitimate secular purposes of solemnizing public occasions,
expressing confidence in the future, and encouraging the recognition of what is
worthy of appreciation in society.'" n41 The plurality observed that such
practices ""are not understood as conveying government approval of particular
religious beliefs.'" n42 Justice O'Connor embraced the same theme in her
concurrence, suggesting that such practices are permissible due to their
long-standing existence and nonsectarian nature, and because they are today
"generally understood as a celebration of patriotic values rather than
particular religious beliefs." n43 [*2093] Although these were the Court's
only explicit references to "ceremonial deism," it has implicitly referred to
this concept from the very beginning of its Establishment Clause jurisprudence.
For instance, Justice Reed, dissenting from the Court's 1948 holding that a
released-time school program in Champaign, Illinois violated the Establishment
Clause, protested that congressional chaplains and prayers, military chaplains,
and assorted other long-standing governmental interactions with religion laid
the constitutional foundation for the program at issue. n44 In Zorach v.
Clauson, the Court's second released-time case, Justice Douglas, writing for the
majority, observed that the First Amendment does not require complete separation
between church and state, for otherwise

prayers in our legislative halls; the appeals to the Almighty in the messages of
the Chief Executive; the proclamations making Thanksgiving Day a holiday; "so
help me God" in our courtroom oaths - these and all other references to the
Almighty that run through our laws, our public rituals, our ceremonies would be
flouting the First Amendment. A fastidious atheist or agnostic could even object
to the supplication with which the Court opens each session: "God save the
United States and this Honorable Court." n45

In short, he wrote, "we are a religious people whose institutions presuppose a

Supreme Being." n46 In Engel v. Vitale, the Court's first school prayer case,
Justice Black distinguished the prayer declared unconstitutional therein from
permissible public practices that acknowledge a belief in God; Black wrote that
"such patriotic or ceremonial occasions bear no true resemblance to the
unquestioned religious exercise that the State of New York has sponsored in this
instance." n47 In School District of Abington Township v. Schempp, the Court's
second school prayer case, Justice Brennan stated in his concurrence that
governmental use of the motto "In God We Trust" does not offend the
Establishment Clause because "we have simply interwoven the motto so deeply into
the fabric of our civil polity that its present use may well not present that
type of involvement which the First Amendment prohibits." n48 He also embraced
the constitutional legitimacy of the addition of "under God" to the Pledge of
Allegiance: recitation of those words, he suggested, "may be no more of a
religious exercise than the [*2094] reading aloud of Lincoln's Gettysburg
Address, which contains an allusion to the same historical fact." n49 The
defining moment for ceremonial deism came in Lynch v. Donnelly. In his majority
opinion, Chief Justice Burger justified a city's inclusion of a nativity scene
in a holiday display by referring to "an unbroken history of official
acknowledgment by all three branches of government of the role of religion in
American life from at least 1789" n50 and the fact that "our history is replete
with official references to the value and invocation of Divine guidance in
deliberations and pronouncements of the Founding Fathers and contemporary
leaders." n51 In no fewer than five pages of the United States Reports, Justice
Burger rattled off a comprehensive litany of government practices embracing
religion, including the Thanksgiving and Christmas holidays, congressional and
military chaplains and the congressional prayer room, the motto, the Pledge of
Allegiance, and presidential proclamations for a National Day of Prayer,
implying that all of these practices are permissible notwithstanding the
Establishment Clause. n52 Similar implicit references to the concept of
ceremonial deism have been commonplace in the Court's recent Establishment
Clause jurisprudence. n53

B. Definition

As the above discussion illustrates, the Supreme Court has utilized the concept
of ceremonial deism to immunize a certain class of activities from Establishment
Clause scrutiny. This class of activities seems to have [*2095] or is
perceived to have certain defining characteristics supporting a definition of
ceremonial deism that would include all practices involving:

1) actual, symbolic, or ritualistic;

2) prayer, invocation, benediction, supplication, appeal, reverent reference to,

or embrace of, a general or particular deity;

3) created, delivered, sponsored, or encouraged by government officials;

4) during governmental functions or ceremonies, in the form of patriotic

expressions, or associated with holiday observances;

5) which, in and of themselves, are unlikely to indoctrinate or proselytize

their audience;

6) which are not specifically designed to accommodate the free religious

exercise of a particular group of citizens; and

7) which, as of this date, are deeply rooted in the nation's history and
traditions. n54

Practices which fit this definition can be divided into two categories, the
first of which I label "core" ceremonial deism, and the second, "fringe"
ceremonial deism. "Core" ceremonial deism includes practices which have been
noncontroversial, have resulted in very little litigation, and have never been
held unconstitutional by any court. Core ceremonial deism consists of the types
of practices that are usually employed in the major premise of the "any more
than" syllogism. The bulk of the practices referred to in the Supreme Court
opinions discussed above fall into this category, including: (1) legislative
prayers and prayer rooms; (2) prayers at presidential inaugurations; (3)
presidential addresses invoking the name of God; (4) the invocation "God save
the United States and this Honorable Court" prior to judicial proceedings; (5)
oaths of public officers, court witnesses, and jurors and the use of the Bible
to administer such oaths; (6) the use of "in the year of our Lord" to date
public documents; (7) the Thanksgiving and Christmas holidays; (8) the National
Day of Prayer; (9) the addition of the words "under God" to the Pledge of
Allegiance; and (10) the national motto "In God We Trust." I classify other
practices that fit this definition as "fringe" ceremonial deism. Compared to
practices which constitute "core" ceremonial deism, these have been more
controversial and have resulted in significantly more litigation and occasional
findings of unconstitutionality. Fringe ceremonial deism consists of those
practices that are usually employed in the minor premise of the "any more than"
syllogism, such as: (1) commencement prayers; (2) governmental displays of
nativity scenes; (3) religious [*2096] symbols on government property or
embedded in government seals; and (4) the public holiday of Good Friday. n55
Because the focus of this Article is to probe the validity of the major premise
of the "any more than" syllogism, the remainder of this Article concentrates on
core, rather than fringe, ceremonial deism.

C. Relationship to Civil Religion

A body of scholarship exists that is so closely connected to ceremonial deism

that I would be remiss if I did not at least briefly address it in this Article.
That scholarship relates to what has been described as the American "civil
religion" or "public religion." Indeed, some courts have used this concept to
justify the constitutionality of practices I have included under the rubric of
ceremonial deism. n56 This section briefly lays out the concept of civil or
public religion and then demonstrates that categorizing practices in such a
manner neither precludes a violation of the Establishment Clause nor sharpens
the Establishment Clause inquiry. Much more has been written about civil
religion than ceremonial deism. The most widely cited work in the area is Robert
Bellah's Beyond Belief. n57 Bellah wrote of "certain common elements of
religious orientation that the great majority of Americans share" which have
played a "crucial role" in the development of our political institutions and
continue to "provide a religious dimension for the whole fabric of American
life, including the political sphere," and which are "expressed in a set of
beliefs, symbols, and rituals" Bellah labeled "the American civil religion." n58
The tenets of this civil religion include "the existence of God, the life to
come, the reward of virtue and the punishment of vice, and the exclusion of
religious intolerance." n59 To Bellah, the national motto "In God We Trust," the
inclusion of "under God" in the Pledge of Allegiance, the oath of office, and
references to the deity in inaugural addresses signify that the ultimate
political sovereignty is attributed not to the people or its leaders, but to
God. n60 From the fact that every President of the United States has mentioned
God in his inaugural address, but none have referred to Jesus Christ, Bellah
deduced that the "God of the civil religion is not only rather "unitarian,'
[but] also on the austere side, much more related to [*2097] order, law, and
right than to salvation." n61 This religion, although not antithetical to
Christianity, is not in any specific sense Christian, but rather "a genuine
vehicle of national religious self-understanding." n62 Nonetheless, as in
Christianity and Judaism, the central figure in Bellah's civil religion is God.
n63 A more recent book by Sanford Levinson, entitled Constitutional Faith, n64
contemplates a radically different civil religion. n65 Levinson's civil religion
consists of the "web of understandings, myths, symbols, and documents" that
justified the new American nation following the Revolution. n66 To Levinson,
civil religion is secular, but consists of items of worship analogous to
traditional religion: the flag, the Declaration of Independence, and the
Constitution. Much as parents teach their children to revere the Bible, they
teach them to revere the Constitution. n67 The worship of the Constitution
replaced the need for a national church, an institution the Framers had
rejected. n68 Neither Bellah's nor Levinson's definition of civil religion
closely resembles the definition of ceremonial deism articulated above.
Levinson's civil religion involves religion metaphorically, not actually. His
version is completely devoid of true religious symbols and dogma. It does not
include God as one of its central elements. Thus, Levinsonian civil religion
would not provide helpful guidance in attempting to determine if practices like
supplications to God in the national motto and in the Pledge of Allegiance are
constitutionally permissible. In sharp contrast, Bellah's version of civil
religion does involve core elements of true sacral religion, though in a
watered-down sense. The God worshiped in Bellah's civil religion is the same God
revered by many Americans in their houses of worship and on holy days. Although
the worship of God in his civil religion is tied more to national unity than to
scripture, it would be extremely difficult to draw Establishment Clause
distinctions based on this fine line. Simply saying that "In God We Trust" does
not involve worship of God in the scriptural sense, but in some
national-unifying sense, does not help answer the constitutionally relevant
question: whether through such a phrase the government sends a [*2098] message
to those who do not believe in God - in this or any other way - that they are
unwelcome in the American political community. n69 Thus, determining whether a
particular ceremonial practice is an acceptable part of Bellah's civil religion
is not useful for determining whether that practice is consistent with the
Establishment Clause. n70 Consequently, the remainder of the Article will focus
on core ceremonial deism as I have defined it, rather than civil religion. n71
[*2099]

II. Where Did Core Ceremonial Deism Come From?

According to the definition outlined above, one of the distinguishing features

of practices which can be labeled "ceremonial deism" is their deeply rooted
origin in the nation's history and traditions. In attempting to assess the
constitutional implications of ceremonial deism, therefore, it will be helpful
to have in mind a basic understanding of how these practices became so deeply
rooted and the continuing role such practices play in modern American society.
Hence, I turn now to history: first to interactions between church and state in
early America and then to the emergence from those interactions of the various
forms of core ceremonial deism having significance even today.

A. Religion in Early America

The citizens of colonial America were "virtually all Christians," n72 the
"overwhelming majority" of whom were Protestants. n73 Not surprisingly,
therefore, "the values, customs, and forms of Protestant Christianity thoroughly
permeated civil and political life." n74 As is widely known, many American
colonists came to America to flee religious persecution in Europe. What is
perhaps less well known is the extent to which these same colonists made
religion an integral part of public life in America. n75 By the time of the
American Revolution, there [*2100] were established churches in ten of the
thirteen colonies: the Anglican Church of England was established in Virginia,
Maryland, South Carolina, North Carolina, and Georgia; the Congregational Church
was established in Massachusetts, Connecticut, and New Hampshire; the Episcopal
and Dutch Reformed Churches were established in New York and New Jersey. n76
Vermont did not disestablish its state church until 1807; Connecticut not until
1818; New Hampshire not until 1819; and Massachusetts not until 1833. n77
Blasphemy was a crime in most jurisdictions; in Vermont it was punishable by
death. n78 Sunday Sabbath laws went hand-in-hand with the established European
churches America inherited. Beginning in 1650, the Plymouth Colony prohibited
work on the Lord's day; by the time the First Amendment was ratified, each of
the original colonies had such laws. n79 The religious purpose of these laws was
manifest. The New York statute, for example, invoked the ""true and sincere
worship of God according to his holy will and commandments'" and was designed to
avert the ""great scandal of the holy Christian faith'" arising from ""not
keeping holy the Lord's day.'" n80 In 1785, none other than James Madison,
subsequently the author of the First Amendment's religion clauses, introduced a
bill, enacted by the Virginia legislature, to punish as a criminal offense any
citizen found working on the Christian Sabbath of Sunday. n81 Although many of
the colonists fled Europe specifically to escape religious test oaths, these
same colonists were "perfectly willing, when they had the power to do so, to
force dissenters from their faith to take test oaths in conformity with that
faith." n82 For instance, Maryland and Massachusetts required a belief in the
Christian religion. n83 Georgia, New [*2101] Hampshire, New Jersey, and North
Carolina had Protestant tests. n84 Delaware required ""faith in God the Father
and in Jesus Christ, His only Son, and in the Holy Ghost, One God, blessed
forever more.'" n85 Other states required ""belief in the inspiration of the
Bible."" n86 Pennsylvania required a "belief that God was "the rewarder of the
good and the punisher of the wicked.'" n87 In all, eleven of the thirteen states
restricted office holding to Protestants or Christians. n88 Maryland limited
public offices to Christians until 1826. n89 It was not until 1868 that the
Constitution of North Carolina was amended to allow non-Christians to hold
public office, and even then, all ""who denied the being of Almighty God'" were
excluded. n90 New Jersey did not permit non-Protestants to hold public office
until 1874. n91 Maryland and Tennessee required a belief in God until the
Supreme Court held such a requirement unconstitutional in 1961. n92 Religion was
also part of the fabric of the federal government from its very first days. n93
The Declaration of Independence of 1776 "appealed to the Supreme Judge of the
world for the rectitude of our intentions" and avowed "a firm reliance on the
protection of a divine Providence." n94 The Articles of Confederation of 1781
paid tribute to the "Great Governor of the World." n95 The Continental Congress
authorized mass production of an American edition of the Bible, the accuracy of
which was attested to by its chaplains. n96 The First Congress enacted
legislation providing for chaplains for the military establishment. n97 Church
attendance at the military academies was compulsory. n98 In 1893, Congress
granted a charter to the Washington Cathedral to set up a church and affiliated
religious, charitable, and educational institutions. n99 [*2102] Although
public schools did not exist in the colonies, it is noteworthy that religious
instruction occurred in almost all colonial schools. n100 Massachusetts
established the first state board of education in 1837. n101 As of 1844, a
majority of the board was comprised of members of the clergy; its president,
Horace Mann, believed that the public school curriculum should include
instruction on the ""lives of great and good men'" for children to admire and
follow their example, ""especially the life and character of Jesus Christ, as
the sublimest pattern of benevolence, of purity, of self-sacrifice, ever
exhibited to mortals.'" n102 He believed instruction regarding the Bible should
be included throughout the curriculum in a general, Protestant sense, rather
than in a sectarian sense. n103 Not only were such practices followed in
Massachusetts, but they were also followed throughout the emerging public
schools in New England and the Middle West. n104 As formal religious instruction
later began to recede, Bible reading, hymns, prayers, and opening and closing
religious exercises remained. n105 All seventeen state colleges and universities
that existed prior to 1860 "considered themselves Christian and required
students to attend religious services." n106 Religion even found its way into
early American judicial opinions. Several state courts faced with challenges to
Sunday Sabbath legislation gushed about the religious nature of the public and
polity. For instance, as Borden notes, the author of an 1848 Pennsylvania
Supreme Court opinion observed that "we are a Christian people and state ... and
I do not recognize the right of legislation to make a day of secular cessation
from labor, independent of the Christian Sabbath." n107 Similarly, the Illinois
Supreme Court is cited as having written in 1883 that

although it is no part of the functions of our system of government to propagate

religion, and to enforce its tenets, when the great body of the people are
Christians, in fact or sentiment, our laws and institutions must necessarily be
based upon and embody the teachings of the Redeemer of mankind. n108

[*2103] Likewise, in 1892 the Nebraska Supreme Court is quoted as stating that
"Christianity is woven into the web and woof of free government and but for it
free government would not have existed ...." n109 Perhaps the boldest statement
of this ilk was the Maryland Supreme Court's claim in 1894 that

ours is a Christian community [in which] a day set apart as the day of rest is
the day consecrated by the resurrection of our Savior .... [, and that i]f the
Christian religion is ... benefitted or fostered by having this day of rest, (as
it undoubtedly is), there is all the more reason for the enforcement of laws
that help to preserve it. n110

In view of the religious/political landscape that existed by the end of the

nineteenth century, it is scarcely surprising that Justice David Brewer, writing
for a unanimous United States Supreme Court in 1892, declared that upon viewing

American life as expressed by its laws, its business, its customs, and its
society, we find everywhere a clear recognition ... [that t]he form of the oath
universally prevailing, concluding with an appeal to the Almighty; the custom of
opening sessions of all deliberative bodies and most conventions with prayer;
the prefatory words in all wills, "In the name of God, Amen"; the laws
respecting the observance of the Sabbath .... add a volume of unofficial
declarations to the mass of organic utterances that this is a Christian nation.
n111
[*2104]

B. The Origin of Core Ceremonial Deism and Its Continuing Significance in Modern
American Society

1. Legislative Prayers and Prayer Rooms.

- Legislative prayer was a natural and uncontroversial offshoot of established

colonial churches and occurred in colonial legislatures both before and after
disestablishment. n112 Prayer continues to be commonplace in modern state
legislatures. n113 The Continental Congress opened its sessions with prayers by
a Christian chaplain n114 and "sprinkled its proceedings liberally with the
mention of God, Jesus Christ, [and] the Christian religion ...." n115 The First
Congress enacted legislation providing for chaplains for both the House of
Representatives and the Senate. n116 Congressional chaplains have led daily
prayers in Congress since that time. And from America's earliest days to the
present times, the prayers delivered by these chaplains have been true sacral
prayers, and many of them, true Christian prayers. n117 Indeed, within the last
six years alone, over two hundred and fifty opening prayers delivered by
congressional chaplains have included supplications to Jesus Christ. n118
[*2105] Beginning in 1800, the House and Senate chambers were used for regular
Sunday church services. Initially these services were led by preachers from area
churches; by 1804 they were led by congressional chaplains. n119 The President
frequently attended these services, which were often assisted by the Marine
Band. n120 These Sunday services continued on a regular basis until
approximately 1865. n121 Although the use of the Capitol for formal worship
services eventually ceased, in 1953 the House of Representatives voted to
establish a prayer room in the Capitol both to allow legislators to pray while
in the Capitol Building and to provide a symbol to the nation and the world that
Congress practiced what it preached. n122 The resolution's sponsor stated that
the legislation's purpose was to "provide a place of retreat as an encouragement
to prayer ...." n123 Another representative injected a more Christian theme:

The creation of a sanctuary for prayer and meditation is in complete accord with
Christian doctrine. We find, according to Matthew - Chapter 6, verse 6 - that
Christ told his followers: "But thou, when thou prayest, enter into thy closet,
when thou has shut the door, pray to thy Father which is not in secret." n124

A colleague contrasted the symbolism of the new American prayer room with
America's Cold War enemy:

At this time in the world's history, when the materialistic ideology of the
Communists is ... right in our own land, it is comforting to know that the
Congress of the United States goes on record as believing in the spiritual
values taught by all religions, and also showing to the world their belief in
prayer and meditation as opposed to the barbarous teachings that so many nations
have fallen prey to. n125

[*2106] Pursuant to this resolution, a nondenominational prayer room was

constructed off the rotunda of the Capitol. n126 Today, it still contains an
altar supporting an open Bible, candelabra, ten seats, and two kneeling benches.
n127 A stained-glass window depicts President Washington at prayer; etched
around Washington is the first verse of Psalm 16: "Preserve me, O God, for in
Thee do I put my trust." n128 Inscribed in panels in the room are the front and
reverse sides of the Great Seal of the United States, the latter of which
contains an "Eye of Providence" over a pyramid representing the original
thirteen colonies, above which appears the motto Annuit Coeptis, translated as
"God has favored our undertaking." n129

2. Prayers at Presidential Inaugurations.

- Formal prayers by Christian ministers have been associated with presidential

inaugurations since the inauguration of George Washington. Those who organized
President Washington's inauguration took their cue from the analogous practice
with which they were most familiar: the English coronation ceremony. n130 The
coronation service consisted of both the "crowning" by the Archbishop of
Canterbury and the recitation of prayers. n131 The organizers of Washington's
inauguration chose to borrow the latter practice despite its foundation in the
established Church of England. n132 Thus, a Senate committee resolved that
""after the oath shall have been administered to the President, he, attended by
the Vice-President, and members [*2107] of the Senate, and House of
Representatives, [shall] proceed to St. Paul's Chapel, to hear divine service,
to be performed by the chaplain of Congress already appointed.'" n133 The Senate
passed this resolution, and the House did likewise, with a minor amendment, the
day before Washington's inauguration. n134 Immediately after the administration
of the oath of office and his inaugural address, President Washington walked
with the members of the House and Senate to St. Paul's Chapel in accordance with
the congressional resolution. n135 At the church, Bishop Samuel Provoost,
Chaplain of the Senate, read prayers from the Book of Common Prayer. n136
Although the venue of inaugural prayers then moved from the church to the
Capitol, n137 the Christian nature of the prayers has remained to this day.
Explicit supplications to Jesus Christ have been part of every inaugural
ceremony during the last sixty years. n138 Moreover, in- [*2108] augural
prayers during both the nineteenth and twentieth centuries have incorporated the
Christian Lord's Prayer from the Book of Matthew, n139 even following the
Supreme Court's 1963 ruling that use of this prayer in public schools is
unconstitutional. n140 The ministers delivering these prayers have sometimes
requested the audience to join in them by standing, bowing their heads, and/or
praying. n141 This tradition continued with the inauguration of Bill Clinton in
1993, at which the Chairman of the Inaugural Committee, Senator Wendell Ford,
asked "the Reverend Billy Graham to lead our Nation in prayer." n142 The prayer
was as follows:

Our God and our Father, we thank You for this historic occasion when we
inaugurate our new President and Vice President. We thank You for the moral and
spiritual foundations which our forefathers gave us, and which are rooted deeply
in Holy Scripture. Those principles have nourished and guided us as a nation in
the past. But we cannot say that we are a righteous people, for we are not. We
have sinned against You. We have sown to the wind and are now reaping the
whirlwind of crime, drug abuse, racism, immorality, and social injustice. We
need to repent of our sins and to turn by faith to You. .... We commit this
inaugural ceremony to You and ask that the memory of this event may always
remind us to pray for our leaders. I pray this in the name of the One who was
called Wonderful Counselor, the mighty God, the everlasting Father, and the
Prince of Peace. Amen. n143

Reverend Graham's benediction concluded in familiar Christian terms: "The Lord

bless us and keep us; the Lord make His face shine upon us and be gracious unto
us; the Lord lift up His countenance upon us, and [*2109] give us peace. In
the name of the Father and of the Son and of the Holy Spirit. Amen." n144

3. Presidential Addresses Invoking the Name of God.

- Every President has included reverent references to the deity in his inaugural
address to the nation. n145 In his first inaugural address, President Washington
offered his "fervent supplications to that Almighty Being who rules over the
universe, who presides in the councils of nations, and whose providential aids
can supply every human defect." n146 In his farewell address in 1796, he
counseled that ""reason and experience both forbid us to expect that national
morality can prevail in exclusion of religious principle.'" n147 Thomas
Jefferson, the President most associated with the concept of separation of
church and state, appealed to God in his first inaugural address: "May that
Infinite Power which rules the destinies of the universe lead our councils to
what is best, and give them a favorable issue for your peace and prosperity."
n148 In his second address, Jefferson asked his audience "to join in
supplications with me that He will so enlighten the minds of your servants,
guide their councils, and prosper their measures ...." n149 Similarly, President
James Madison placed confidence in the "guardianship and guidance of that
Almighty Being whose power regulates the destiny of nations ... and to whom we
are bound to address ... our fervent supplications and best hopes for the
future." n150 More recently, Presidents Eisenhower, Reagan, and Bush have asked
their audiences to join them in prayer. n151 On January 20, 1993, Bill Clinton
became the forty-second President to season his inaugural address with an appeal
to the deity: ""We have changed the guard. And now - each in our own way, and
with God's help - we must answer the call. Thank you, and God bless you all.'"
n152

4. The Invocation "God save the United States and this Honorable Court" Prior to
Judicial Proceedings.

- Like the practice of inaugural prayers, the [*2110] invocation of the

Supreme Court, and most lower federal courts, was inherited from England. n153
In England, home of the established Anglican Church, the invocation was
traditionally "God save the Queen." That tradition probably continued until the
colonies achieved their independence and substituted the "United States" for the
"Queen." The invocation "God save the United States and this Honorable Court"
has been used to convene Supreme Court sessions since the time John Marshall was
Chief Justice n154 and continues today as standard practice in federal courts.
n155

5. Oaths of Public Officers, Court Witnesses, and Jurors and the Use of the
Bible to Administer Such Oaths.

- Oaths to God to assume public office and in judicial proceedings were

inherited from England as well. Anyone who wanted to assume public office in
England or to testify in a court proceeding was required to do so in the
presence of Almighty God, according to the teachings of the Holy Evangelists,
and to kiss the Bible. n156 According to one English scholar, the purpose of the
oath was to provide the "highest possible security which men in general can give
for the truth of their statements." n157 Although the oath of office specified
in the Constitution for the President and other federal officers does not
include a reference to God, n158 Presidents have appealed to the deity in their
oaths since the inauguration of George Washington. n159 When President
Washington completed his constitutional oath of office, his hand placed on a
Masonic Bible, he added, spontaneously, "I swear, so help me God" and then
kissed the Bible. n160 It is most likely that Washington borrowed this practice
from the English coronation ceremony, where the new King would kneel at the
altar, place his hands on the Bible, swear the oath, and then kiss the Bible.
n161 Every President in modern times has sworn his oath "so [*2111] help me
God." n162 President Bill Clinton and Vice President Al Gore followed this
tradition when they were sworn into office on January 20, 1993. n163 Similarly,
under English common law, no one but a believer in God and in a future state of
rewards and punishments could serve on a jury or testify as a witness. The oath
was taken on a Christian Bible, in effect disqualifying non-Christians. n164 The
English courtroom was quite explicit as to the consequences of perjury while
under oath:

I charge thee, therefore, as thou will answer it to the Great God, the judge of
all the earth, that thou do not dare to waver one tittle from the truth, upon
any account or pretense whatsoever; ... for that God of Heaven may justly strike
thee into eternal flames and make thee drop into the bottomless lake of fire and
brimstone, if thou offer to deviate the least from the truth and nothing but the
truth. n165

This is the courtroom atmosphere America inherited. n166 Consequently, in

certain places in early America the privilege of serving as a witness or on a
jury was expressly restricted to Christians. n167 It is, therefore, not
surprising that the South Carolina Supreme Court is reported to have noted in
1848 that

"in the courts over which we preside, we daily acknowledge Christianity as the
most solemn part of our administration. A Christian witness, having no religious
scruples against placing his hand upon the Book, is sworn upon the holy
Evangelists - the books of the New Testament, which testify of our Savior's
[*2112] birth, life, death and resurrection; this is so common a matter that it
is little thought of as an evidence of the part which Christianity has in the
common law." n168

In 1828, the Connecticut Supreme Court "ruled that disbelievers in

accountability to God or in an afterlife were not competent witnesses." n169
Indeed, as late as 1939, five states and the District of Columbia excluded the
testimony of those professing a disbelief in God, and, in a dozen or so
additional states, the testimony of nonbelievers was subject to attack on the
ground that one's credibility was impaired by irreligion or a lack of belief in
a deity. n170 Oaths on the Bible are still standard fare in American courtrooms
today; witnesses, grand jurors, prospective petit jurors, and interpreters are
all asked to swear to tell the truth, "so help me God." n171

6. The Use of "in the year of our Lord" to Date Public Documents.

- Public documents throughout the Christian world have been dated with reference
to the birth of Jesus Christ for many centuries. In fact, the American
Constitution is dated "the Seventeenth Day of September in the Year of our Lord
one thousand seven hundred and Eighty seven." n172 Governmental documents from
presidential proclamations to state law licenses to educational diplomas often
employ such language. n173 This reference [*2113] may appear in Latin, "Anno
Domini," or in its abbreviated form, "A.D." Whatever language used, abbreviation
or not, the reference to "the year of our Lord" continues to the present.

7. The Thanksgiving and Christmas Holidays.

- The Thanksgiving holiday has its origin in the Plymouth colony in 1620. n174
The Continental Congress issued several Thanksgiving Day proclamations between
1775 and 1787. n175 One 1777 proclamation stated that "it is the indispensible
Duty of all men to adore the superintending Providence of Almighty God; to
acknowledge with Gratitude their Obligation to him for Benefits received, and to
implore such farther [sic] Blessings as they stand in Need of...." n176 These
proclamations typically concluded: "And it is recommended to Christians of all
denominations, to assemble for publick worship, and to abstain from servile
labour and recreation on said day." n177 The day the House of Representatives
endorsed the First Amendment and its Establishment Clause, it adopted a
resolution to send several of its members together with several Senators to ask
the President ""to recommend to the people of the United States a day of public
Thanksgiving and prayer, to be observed by acknowledging, with grateful hearts,
the many signal favors of Almighty God.'" n178 President Washington proclaimed
November 26, 1789 the first official American Thanksgiving holiday. n179 His
Thanksgiving day proclamation urged all Americans to "unite in most humbly
offering our prayers and supplications to the great Lord and Ruler of Nations,
and beseech Him to pardon our national and other transgressions." n180
Presidents Adams and Madison also issued Thanksgiving proclamations, n181 as
have most Presidents since. n182 These proclamations typically recognize the
religious origins and overtones of the holiday. For instance, in 1944, President
Franklin D. Roosevelt "suggested a nationwide reading of the Holy Scriptures
during the period from Thanksgiving [*2114] Day to Christmas" so that the
people "may bear more earnest witness to our gratitude to Almighty God." n183 In
proclaiming the 1994 Thanksgiving holiday, President Clinton asked that "we set
aside our daily routines to acknowledge the bounty and mercy of Divine
Providence" and "urged the citizens of this great Nation to ... gather[] in
their homes and places of worship to express their heartfelt gratitude for the
many blessings of our lives." n184 Congress declared Thanksgiving a permanent
holiday in the District of Columbia in 1870 and for per diem federal employees
in 1885. n185 In 1941, Congress enacted legislation making Thanksgiving a
permanent national holiday. n186 Congress first declared Christmas an official
holiday for the District of Columbia in 1870 and for per diem federal employees
in 1885, n187 and then made it a national holiday in 1894. n188 Presidents
typically make formal Christmas statements to the nation. The following excerpts
from Christmas statements of Presidents Clinton, Bush, and Reagan, respectively,
are illustrative:

As we celebrate the birth of Jesus Christ, the Prince of Peace, let us not
forget His lesson that one day we will be asked whether we lived out His love in
ways that treated all of our brothers and sisters as we would have treated Him,
even the least of them. He taught us all to seek peace and to treat all people
with love. n189

By His words and by His example, Christ has called us to share our many
blessings with others. As individuals and as a Nation, in our homes and in our
communities, there are countless ways that we can extend to others the same love
and mercy that God showed humankind when He gave us His only Son. During this
holy season and throughout the year, let us look to the selfless spirit of
giving that Jesus embodied as inspiration in our own lives - giving thanks for
what God has done for us and abiding [*2115] by Christ's teaching to do for
others as we would do for ourselves. n190

Today, as we gather with our family and friends to honor Christ, we can
experience the same peace and joy as the shepherds and the Magi did almost two
thousand years ago. n191

8. The National Day of Prayer.

- The National Day of Prayer was first proclaimed by the Continental Congress in
1775. n192 The nation's second President, John Adams, proclaimed two national
fast days, "emphasizing dependence on God as essential for the "promotion of
that morality and piety without which social happiness can not exist nor the
blessings of a free government be enjoyed.'" n193 He also called on the American
people to engage in Christian worship. n194 President James Madison issued three
proclamations recommending public humiliation and prayer. n195 One of these
proclamations alluded to America as a "Christian nation." n196 These types of
proclamations continued into the nineteenth century. For example, in 1862, the
Senate by resolution called upon President Lincoln to set apart a day for prayer
and humiliation. The resolution employed [*2116] Christian phraseology in
referring to ""His appointed way through Jesus Christ.'" n197 President
Lincoln's proclamation in response to the resolution deplored the way "Americans
"had forgotten God' in their pursuit of material prosperity, and ... recognized
"the sublime truth announced in the Holy Scriptures.'" n198 It was not until
ninety years later, however, that the "National Day of Prayer" became a
permanent, statutory day of observation. In 1952, the Reverend Billy Graham,
delivering an evangelical sermon from the east steps of the Capitol, suggested
that Congress call on the President to proclaim an official national day of
prayer. n199 A congressional resolution was introduced the following day. n200
The House sponsor, acknowledging the legislation's genesis "by the great
spiritual leader, Billy Graham," asserted that "the national interest would be
much better served if we turn aside for a full day to pray for spiritual help
and guidance from the Almighty during these turbulent times." n201 He also
expressed his "hope that all denominations, Catholics, Jewish, and Protestants,
will join in this day of [*2117] prayer. ..." n202 Another Congressman
remarked that "this would be one of the most significant proclamations to be
issued in the year of 1952." n203 The prayer resolution's Senate sponsor
stressed a need for divine guidance at this particular time due to threats "at
home and abroad by the corrosive forces of communism which seek simultaneously
to destroy our democratic way of life and the faith in an Almighty God on which
it is based." n204 A colleague concurred that "it is fitting and timely that the
people of America, in approaching the Easter season, as God-fearing men and
women, devote themselves to a day of prayer in the interest of peace." n205
[*2118] The enacted legislation calls on the President to "set aside and
proclaim the first Thursday in May in each year as a National Day of Prayer, on
which the people of the United States may turn to God in prayer and meditation
at churches, in groups, and as individuals." n206 Since 1952, every President
has issued such a proclamation. n207 In 1995, President Clinton's proclamation
urged Americans to "continue to seek the guidance of God in all the affairs of
our Nation," and suggested that ""it behooves us ... to humble ourselves before
the offended Power, to confess our national sins and pray for clemency and
forgiveness' for any injustice we perceive in our midst." n208

9. The Addition of the Words "under God" to the Pledge of Allegiance.

- Few Americans under the age of forty realize that the Pledge of Allegiance has
not always contained the words "under God." n209 From its first utterance at a
national public school conference in 1892 through its codification as federal
law in 1945, n210 the Pledge of Allegiance did not contain any reference to the
deity. n211 It was not until June 1954, at the height of the Cold War with the
Soviet Union, that this reference to God was added. n212 That change was
precipitated by a sermon delivered by the Reverend George M. Docherty at the New
York Avenue Presbyterian Church in Washington, with President Eisenhower and
several Senators and Representatives in attendance.

There was something missing in the pledge, "and that which was missing was the
characteristic and definitive factor in the American way of life. Indeed, apart
from the mention of the phrase [*2119] 'the United States of America,' it
could be the pledge of any republic. In fact, I could hear little Muscovites
repeat a similar pledge to their hammer-and-sickle flag in Moscow with equal
solemnity...." The definitive factor in the American way of life was God
Himself. n213

This sermon was so powerful that in its wake no fewer than seventeen bills were
introduced to incorporate God into the Pledge of Allegiance n214 and portions of
it were reprinted in the Senate Report on the final version of the legislation.
n215 The fervor that began with this sermon soon infected the public, which
responded to Reverend Docherty's proposal and the congressional legislation with
overwhelming support. n216 Several themes pervaded the debate to add God to the
Pledge of Allegiance. First, as was alluded to in Reverend Docherty's sermon,
there was the conclusion that something was needed to distinguish America from
its atheistic Cold War rival. n217 Representatives and Senators making this
distinction referred to atheism as being amoral, evil, and certainly
un-American. n218 Second, repeated reference was made to America as a [*2120]
religious, and to some, a Christian, nation, n219 which was morally compelled to
incorporate that spirituality into its national pledge. n220 The symbolism of
placing the words ""under God' on millions of lips" was likened to "running up
the believer's flag as the witness of a great nation's faith" to forcefully
remind "those who deny the sacred sanctities which it symbolizes" that, like it
or not, theirs is a nation that believes devoutly in God. n221 Third, some
elected officials fervently believed that America needed to redirect its moral
compass to God n222 and, in the opinion of at least one representative, to Jesus
Christ. n223 To those legislators, inserting God into the Pledge of Allegiance
was an important symbolic step in that direction. n224 [*2121] The most
pronounced theme running throughout the debate involved the upbringing of
America's youth. In floor speech after floor speech, Representatives and
Senators asserted that American schoolchildren needed to be indoctrinated with
the belief that America is a nation under God. According to the legislation's
House sponsor, Representative Rabaut, "from their earliest childhood our
children must know .... that this is one Nation [where] "under God' means
"liberty and justice for all.'" n225 The House Judiciary Committee incorporated
in its report Rebaut's statement that ""the children of our land, in the daily
recitation of the pledge in school, will be daily impressed with a true
understanding of our way of life and its origins.'" n226 The Senate sponsor,
Senator Ferguson, wanted Americans to realize the spiritual values underpinning
their government. To drive the point home, he felt it necessary to "remind the
Boy Scouts, the Girl Scouts, and the other young people of America, who take the
pledge of allegiance to the flag more often than do adults, that it is not only
a pledge of words, but also of belief." n227 Another Senator happily concurred:
"What better training for our youngsters could there be than to have them, each
time they pledge allegiance to Old Glory, reassert their belief, like that of
their fathers and their fathers before them, in the all-present, all-knowing,
all-seeing, all-powerful Creator." n228 All of these themes were reflected in
President Eisenhower's signing ceremony, carried live to the nation by radio.
The President stated:

From this day forward, the millions of our schoolchildren will daily proclaim in
every city and town, every village and rural schoolhouse, the dedication of our
Nation and our people to the Almighty. To anyone who truly loves America,
nothing could be more inspiring than to contemplate this rededication of our
youth, on each school morning, to our country's true meaning. ... Over the
globe, ... millions [have been] deadened in mind and soul by a materialistic
philosophy of life.... In this way, we are reaffirming the transcendence of
religious faith in America's heritage and future, in this way we shall
constantly strengthen those spiritual weapons which forever shall be our
country's most powerful resource, in peace or in war. n229

[*2122] After the President signed the legislation, the new Pledge of
Allegiance was recited by all in attendance; the American flag was then raised,
followed by a bugler's rendition of "Onward, Christian Soldiers!" n230 In view
of the legislative history of the enactment of the Pledge of Allegiance, it is
hardly surprising that in the same month that the Pledge resolution was enacted,
the Senate Judiciary Subcommittee on Constitutional Amendments held hearings on
a proposal by Senator Ralph Flanders of Vermont to amend the Constitution "to
recognize the authority and law of Jesus Christ." n231

10. The National Motto "In God We Trust."

- Use of slogans recognizing a national trust in God has a wartime lineage
dating back to the War of 1812. In September of 1814, fearing for the fate of
his country while watching the British bombardment of Fort McHenry in Baltimore,
Francis Scott Key composed the poem the "Star Spangled Banner," of which one
line in the final stanza is "And this be our motto - "In God is our trust.'"
n232 In 1861, in the early days of the Civil War, the Reverend M.R. Watkinson of
Pennsylvania wrote to then Secretary of the Treasury Salmon P. Chase, suggesting
that a motto signifying America's trust in God be stamped on American coins:
""If the republic should be shattered beyond recognition[,] ... the antiquaries
of succeeding centuries would rightly conclude that America had been a heathen
nation ....'" n233 Soon thereafter, Chase, who would later become Chief Justice
of the Supreme Court, wrote the following in a letter to the Director of the
Mint: ""No nation can be strong except in the strength of God, or safe except in
His defense. The trust of our people in God should be declared on our national
coins.'" n234 This belief was echoed in a sermon by [*2123] the Reverend Henry
Augustus Boardman of Philadelphia in 1862. n235 As a result of these appeals,
the patterns for the half dollar and half eagle submitted in 1862 contained the
inscription "God our Trust," and a pattern for a two-cent piece in 1863 included
a bust of Washington with the legend "God and our Country." n236 In 1864, the
motto "In God We Trust" appeared on the two-cent piece. n237 In 1865, Congress
enacted legislation authorizing the phrase to be placed on certain coins. n238
President Theodore Roosevelt ordered the motto removed in 1907, believing that
stamping the phrase on coins came ""dangerously close to sacrilege'" and that
there was ""no legal warrant to place the motto on coins.'" n239 The very next
year, Congress responded by mandating the inscription of the phrase on all coins
on which it had appeared before Roosevelt's action; Roosevelt acquiesced and
signed the legislation. n240 However, it was not until the height of the Cold
War in 1955, in the wake of the Pledge of Allegiance fervor described above,
that Congress mandated the inscription of "In God We Trust" on all coins and
paper currency. n241 Only the legislation's sponsor, Representative Bennett,
spoke on the floor of Congress:

In these days when imperialistic and materialistic communism seeks to attack and
to destroy freedom, it is proper for us to seek continuously for ways to
strengthen the foundation of our freedom. At the base of our freedom is our
faith in God and the desire of Americans to live by His will and by His
guidance. As long as this country trusts in God, it will prevail. To remind all
of us of this self-evident truth, it is proper that our currency should carry
these inspiring words, coming down to us through our history: "In God We Trust."
n242

The following year, Congress codified "In God We Trust" as our national motto.
n243 The House Report explained Congress's rationale:

It will be of great spiritual and psychological value to our country to have a

clearly designated national motto of inspirational [*2124] quality in plain,
popularly accepted English. The Judiciary Committee of the House of
Representatives recognizes that the phrase "E pluribus unum" has also received
wide usage in the United States. However, the committee considers "In God We
Trust" a superior and more acceptable motto for the United States. n244

The motto appears over the Speaker's dais in the House of Representatives and
above the south entrance to the Senate chamber. It has also appeared on postage
stamps, including the 1928 two-cent Valley Forge stamp, which contained the
vignette of Washington kneeling in prayer and was issued to commemorate the
150th anniversary of Washington's encampment. n245

III. Does Core Ceremonial Deism Violate the EstablishmentClause?

With a complete understanding of the origin and current significance of core
ceremonial deism in hand, we can now examine the constitutionality of such
practices under the Supreme Court's prevailing Establishment Clause
jurisprudence. Part III first outlines the Court's Establishment Clause doctrine
and principles and then employs this outline in a systematic analysis of the
constitutionality of all ten practices of core ceremonial deism. This analysis
will answer the questions raised in the Introduction - namely, whether
ceremonial deism is compatible with the Court's Establishment Clause doctrine,
whether the initial premise of the "any more than" syllogism is valid, and
whether the ever-expanding list of practices authorized by that syllogism is
justified.

A. The Supreme Court's Establishment Clause Jurisprudence

1. Doctrine.

- The Supreme Court first forayed into the meaning of the Establishment Clause
in the 1947 case of Everson v. Board of Education. n246 In an oft-quoted
passage, the Court observed:

The "establishment of religion" clause of the First Amendment means at least

this: Neither a state nor the Federal Government can set up a church. Neither
can pass laws which aid one religion, aid all religions, or prefer one religion
over another. Neither can force nor influence a person to go to or to remain
away from church against his will or force him to profess a belief or disbelief
in any religion. No person can be punished for entertaining or professing
religious beliefs or disbeliefs, for church attendance or non-attendance.... In
the words of Jefferson, the clause against establishment of religion by law was
intended to erect "a wall of separation between church and State." n247

[*2125] In the 1971 landmark case of Lemon v. Kurtzman, n248 the Court
acknowledged that its decisions since Everson had established a three-pronged
test to analyze alleged Establishment Clause violations. To withstand scrutiny
under this test, a challenged governmental practice must: 1) have a secular
purpose, 2) have a primary effect which neither advances nor inhibits religion,
and 3) not foster excessive entanglement with religion. n249 Between 1971 and
1984, the Court faithfully applied the Lemon test to every Establishment Clause
challenge except the legislative prayer case of Marsh v. Chambers. n250
Beginning in 1984, however, Justice Sandra Day O'Connor began applying to Lemon
a new gloss which has gradually won acceptance by the Court. In Lynch v.
Donnelly, Justice O'Connor suggested a "clarification" of the Court's
Establishment Clause doctrine. n251 She indicated that, in her view, the first
two prongs of Lemon stand for the following principles:

The Establishment Clause prohibits government from making adherence to a

religion relevant in any way to a person's standing in the political community.
Government can run afoul of that prohibition [by] .... endorsement or
disapproval of religion. Endorsement sends a message to nonadherents that they
are outsiders, not full members of the political community, and an accompanying
message to adherents that they are insiders, favored members of the political
community. Disapproval sends the opposite message. n252

With these principles in mind, Justice O'Connor described the proper focus of
Establishment Clause analysis:

The purpose prong of the Lemon test asks whether government's actual purpose is
to endorse or disapprove of religion. The effect prong asks whether,
irrespective of government's actual purpose, the practice under review in fact
conveys a message of endorsement or disapproval. An affirmative answer to either
question should render the challenged practice invalid. n253

[*2126] These questions, she wrote, are "in large part [] legal questions to
be answered on the basis of judicial interpretation of social facts," rather
than upon factual findings in individual cases. n254 The following year, Justice
O'Connor's endorsement test worked its way into a plurality opinion, Wallace v.
Jaffree, n255 and a majority opinion, School District of Grand Rapids v. Ball.
n256 In her concurrence in Wallace, Justice O'Connor further refined the test:

The endorsement test does not preclude government from acknowledging religion or
from taking religion into account in making law and policy. It does preclude
government from conveying or attempting to convey a message that religion or a
particular religious belief is favored or preferred. Such an endorsement
infringes the religious liberty of the nonadherent, for "when the power,
prestige and financial support of government is placed behind a particular
religious belief, the indirect coercive pressure upon religious minorities to
conform to the prevailing officially approved religion is plain." n257

She also introduced a new construct to the test: "The relevant issue is whether
an objective observer, acquainted with the text, legislative history, and
implementation of the statute, would perceive [the challenged practice] as a
state endorsement of [religion]." n258 In Grand Rapids, the majority
incorporated these clarifications, stating that, when evaluating the effect of
government conduct under the Establishment Clause, courts must ascertain whether
"the challenged governmental action is sufficiently likely to be perceived by
adherents of the controlling denominations as an endorsement, and by the
nonadherents as a disapproval, of their individual religious choices." n259
Justice O'Connor added more wrinkles to the endorsement test in Capitol Square
Review & Advisory Board v. Pinette. n260 Although she had previously suggested
that her hypothetical, objective observer be "reasonable," n261 she had never
precisely defined the level of knowledge which [*2127] should be attributed to
this observer. In Pinette, Justice O'Connor clarified that this observer should
be deemed more informed than one casually passing through the place where an
allegedly unconstitutional governmental expression of religion is located. n262
The endorsement test, she noted, is not about "saving isolated nonadherents from
the discomfort of viewing symbols of a faith to which they do not subscribe"
and, therefore, does not "focus on the actual perceptions of individual
observers ...." n263 Rather, the endorsement test seeks to create a collective,
objective standard in which the reasonable observer personifies ""a community
ideal of reasonable behavior, determined by the [collective] social judgment.'"
n264 To effectuate this standard, the reasonable observer "must be deemed aware
of the history and context" in which the allegedly unconstitutional practice
occurs. n265 Since 1985, the endorsement test has been incorporated into several
majority and plurality opinions. n266 Even those Justices who had previ-
[*2128] ously indicated hostility to the test n267 have now apparently
acquiesced to its constitutional legitimacy as the proper focus of Establishment
Clause analysis. n268 It is therefore appropriate to analyze the
constitutionality of ceremonial deism through the endorsement lens. n269

2. Subsidiary Principles.

- In addition to Lemon and the endorsement test, the Court has, at one time or
another, relied on several subsidiary [*2129] principles to resolve
Establishment Clause claims. An understanding of these subsidiary principles
will be useful in analyzing the constitutionality of ceremonial deism. First,
the government is prohibited from expressing a preference for religion over
nonreligion just as it is prohibited from expressing a preference for a
particular religion. n270 Consequently, a practice is not constitutionally
permissible merely because it is nonsectarian. If a practice endorses religion
generally, even in a nonsectarian manner, it constitutes a forbidden
endorsement. Second, preferences that do favor particular religions are subject
to the most exacting judicial scrutiny. n271 Third, courts will be particularly
sensitive to governmental practices that aid religion if those practices occur
within public schools, where impressionable children are effectively coerced
into participating in such practices. n272 Fourth, a governmental practice may
be held to endorse religion if the government has chosen religious means to
accomplish a goal which can be achieved equally well through secular means. n273
Finally, the government may seek to accommodate the religious beliefs or
practices of its citizens only by removing a discernable burden on those beliefs
or practices. n274 The government may not permit the majority to "use the
machinery of the State to practice its beliefs." n275 I now briefly focus on
several seminal cases to illustrate the application of Lemon, the endorsement
test, and these subsidiary principles. [*2130]

3. Application

a. Purpose Prong.

- The Supreme Court has invalidated four state statutes under the purpose prong
of either Lemon or the endorsement test. Two of those cases, Epperson v.
Arkansas n276 and Edwards v. Aguillard, n277 involved legislative efforts to
limit the teaching of evolution in the public schools. In Epperson, an Arkansas
statute made it a criminal offense for any public school or university
instructor to teach evolution. The Court concluded without difficulty that the
"fundamentalist sectarian conviction" that the Book of Genesis is the exclusive
source of doctrine as to the origin of humans "was and is the law's reason for
existence." n278 The Court determined the purpose of the statute without
consulting any legislative history. It did, however, rely on an advertisement
placed by the statute's supporters:

THE BIBLE OR ATHEISM, WHICH? All atheists favor evolution. If you agree with
atheism vote against [the Act]. If you agree with the Bible vote for [the
Act].... The Gazette said Russian Bolshevists laughed at Tennessee. True, and
that sort will laugh at Arkansas. Who cares? Vote FOR [the Act]. n279

In Edwards, a Louisiana statute prohibited the teaching of evolution in public

elementary and secondary schools unless accompanied by instruction in "creation
science." The Court noted that analysis under the first prong of Lemon requires
consultation of the statute itself, its legislative history, its "historical
context," and the "specific sequence of events leading to passage ...." n280
Although the state asserted that the purpose of the Act was to protect academic
freedom, the Court, relying on statements of the Senate sponsor, concluded that
"the preeminent purpose of the Louisiana Legislature was clearly to advance the
religious viewpoint that a supernatural being created humankind." n281
Specifically, "as in Epperson, the legislature passed the Act to give preference
to those religious groups which have as one of their tenets the creation of
humankind by a divine creator." n282 The Court concluded that "because the
primary purpose of the Creationism Act is to advance a particular religious
belief, the Act endorses religion in violation of the First Amendment." n283 In
Stone v. Graham, n284 the Court invalidated a Kentucky statute requiring the
display of the Ten Commandments on public schoolroom walls. The Court found an
improper religious purpose on the statute's face: "The Ten Commandments are
undeniably a sacred text in the [*2131] Jewish and Christian faiths, and no
legislative recitation of a supposed secular purpose can blind us to that fact."
n285 The Court noted that some of the Commandments "concern ... the religious
duties of believers: worshiping the Lord God alone, avoiding idolatry, not using
the Lord's name in vain, and observing the Sabbath Day." n286 Quoting from
Schempp, it observed: ""Surely the place of the Bible as an instrument of
religion cannot be gainsaid ....'" n287 The Court concluded that the effect of
posting the Commandments in schools would be "to induce the schoolchildren to
read, meditate upon, perhaps to venerate and obey, the Commandments. However
desirable this might be as a matter of private devotion, it is not a permissible
state objective under the Establishment Clause." n288 Finally, in Wallace v.
Jaffree, n289 the Court addressed an Alabama statute which provided for a moment
of silence for meditation or voluntary prayer prior to the beginning of the
public school day. The Court began its analysis by clarifying that a religious
purpose will invalidate a statute only if that purpose predominates. n290 The
Court then examined in detail both the statute's express legislative purpose and
statements made by the Senate sponsor during the legislative debate and before
the district court. The Senate sponsor's legislative statement was as follows:

Gentlemen, by passage of this bill by the Alabama Legislature[,] our children in

this state will have the opportunity of sharing in the spiritual heritage of
this state and this country. The United States as well as the State of Alabama
was founded by people who believe in God. I believe this effort to return
voluntary prayer to our public schools [is a] return [for] us to the original
position of the writers of the Constitution, [and] hundreds of Alabamians have
urged my continuous support for permitting school prayer. n291

In view of an already-existing Alabama statute which explicitly protected the

right of students to pray voluntarily, the Court reasoned that the challenged
statute was enacted either (1) "to convey a message of state endorsement and
promotion of prayer;" or (2) "for no purpose" at all. n292 The Court had little
difficulty concluding that the former was the actual purpose and that the
statute at issue "had no secular purpose." n293 In addition to the four cases
which invalidated state practices under Lemon's purpose prong, I should pause to
mention one case which did [*2132] not, McGowan v. Maryland. n294 That case
involved a challenge to Maryland's Sunday closing laws. There was no dispute
that Maryland's original Sunday closing laws "were motivated by religious
forces" seeking to codify the Fourth Commandment on sabbath-breaking. n295 The
Court concluded, however, that those laws had lost their religious character
over time and were transformed into a mere uniform day of rest and recreation
devoid of religious significance. n296 Moreover, the Court held that even though
a Sunday day of rest happens to coincide with tenets of the Christian religion,
such a coincidence is not itself sufficient to invalidate the practice;
otherwise, murder, adultery, polygamy, theft, and fraud statutes would be
constitutionally suspect. n297 Consequently, the Court rejected the
Establishment Clause challenge to the laws at issue. n298

b. Effect Prong.

- Most of the laws and practices the Supreme Court has found to violate the
Establishment Clause have been invalidated under Lemon's or the endorsement
test's effect prong. For the sake of brevity, I will focus here on only four of
these cases: the two school prayer cases, Engel v. Vitale and School District of
Abington Township v. Schempp, the second nativity scene case, County of
Allegheny v. ACLU, and the commencement prayer case, Lee v. Weisman. An
examination of these cases should lay a sufficient foundation to analyze the
effects of the core forms of ceremonial deism identified in Part II. Aside from
these four cases, two of the Supreme Court's decisions are noteworthy for not
invalidating practices under the effect prong: Marsh v. Chambers, the
legislative prayer case, and Lynch v. Donnelly, the first nativity scene case. I
discuss these cases below as well. In Engel v. Vitale, the New York State Board
of Regents composed the following twenty-two word prayer and recommended that
public school districts begin each school day with its recitation: ""Almighty
God, we acknowledge our dependence on Thee, and we beg Thy blessings upon us,
our parents, our teachers and our Country.'" n299 The Court found this practice

wholly inconsistent with the Establishment Clause. There can, of course, be no

doubt that New York's program of daily class- [*2133] room invocation of God's
blessings as prescribed in the Regents' prayer is a religious activity. It is a
solemn avowal of divine faith and supplication for the blessings of the
Almighty. The nature of such a prayer has always been religious .... n300

Although the State conceded that the prayer was religious, it contended that the
prayer was nevertheless permissible in view of the nation's spiritual heritage.
n301 The Court disagreed, concluding that the Establishment Clause "must at
least mean that in this country it is no part of the business of government to
compose official prayers for any group of the American people to recite as part
of a religious program carried on by government." n302 In endorsement-like
language, the Court noted that "one of the greatest dangers to the freedom of
the individual to worship in his own way lay in the Government's placing its
official stamp of approval upon one particular kind of prayer or one particular
form of religious services." n303 Such a prayer is unconstitutional, the Court
held, even if it is denominationally neutral and observance is entirely
voluntary, for violation of "the Establishment Clause, unlike the Free Exercise
Clause, does not depend upon any showing of direct governmental compulsion ...."
n304 Moreover, the Court noted, there is subtle coercion involved any time the
government prescribes religious conduct: "When the power, prestige and financial
support of government is placed behind a particular religious belief, the
indirect coercive pressure upon religious minorities to conform to the
prevailing officially approved religion is plain." n305 Finally, to the
suggestion that the brevity and neutrality of the Regents' prayer prevented it
from being a real threat to religious liberty, the Court responded with the
words of James Madison:

"It is proper to take alarm at the first experiment on our liberties.... Who
does not see that the same authority which can establish Christianity, in
exclusion of all other Religions, may establish with the same ease any
particular sect of Christians, in exclusion of all other Sects? That the same
authority which can force a citizen to contribute three pence only of his
property for the support of any one establishment, may force him to conform to
any other establishment in all cases whatsoever?" n306

At issue in the second school prayer case, School District of Abington Township
v. Schempp, was a Pennsylvania statute which required the reading of at least
ten verses of the Bible, without comment, at the opening of [*2134] each
public school day. n307 At the high school involved in the litigation, the Bible
reading was accomplished via intercom, followed by recitation of the Lord's
Prayer; students were asked to stand and join in reading that prayer in unison.
n308 The school district contended that these practices were permissible for
"the promotion of moral values, the contradiction to the materialistic trends of
our times, [and] the perpetuation of our institutions and the teaching of
literature." n309 The Court rejected these contentions, finding that "surely the
place of the Bible as an instrument of religion cannot be gainsaid ...." n310 As
it did the previous year in Engel, the Court rejected the argument that the
practices were permissible because students were not required to participate.
n311 Finally, the Court stated that "it is no defense to urge that the religious
practices here may be relatively minor encroachments on the First Amendment. The
breach of neutrality that is today a trickling stream may all too soon become a
raging torrent ...." n312 Marsh v. Chambers and Lynch v. Donnelly, decided
during an eight-month span in the mid 1980s, were radical departures from Engel
and Schempp. In Marsh, the Court addressed the constitutionality of Nebraska's
practice of opening legislative sessions with a prayer by a chaplain paid from
state funds. n313 The Court began its analysis by noting that such a practice
was "deeply embedded in the history and tradition of this country" n314 and by
coupling this practice with the judicial invocation "God save the United States
and this Honorable Court." n315 The Court then examined the legislative history
behind congressional chaplains and prayers and concluded that the original
intent of the Framers was to permit such practices notwithstanding the First
Amendment. n316 Based on this "unique history," n317 the Court concluded that
"invoking Divine guidance on a public body entrusted with making laws is not, in
these circumstances, an "establishment' of religion or a step toward
establishment; it is simply a tolerable acknowledgement of beliefs widely held
among the [*2135] people of this country." n318 In his dissent, Justice
Brennan pointed out the obvious: the majority opinion did not even purport to
apply settled Establishment Clause doctrine to the practice at issue, and "if
the Court were to judge legislative prayer through the unsentimental eye of our
settled doctrine, it would have to strike it down as a clear violation of the
Establishment Clause." n319 Lynch picked up where Marsh left off. At issue was a
nativity scene erected in a private park in Pawtuckett, Rhode Island; the
display was erected and paid for by the City of Pawtuckett. n320 As in Marsh,
the Court's primary focus was on history and tradition, rather than on
Establishment Clause doctrine. n321 When the Court finally addressed the effect
of the display under Lemon, it resorted to the "any more than" syllogism rather
than attempting to articulate a clear secular effect: "We are unable to discern
a greater aid to religion deriving from inclusion of the creche than from these
benefits and endorsements previously held not violative of the Establishment
Clause." n322 Notably, the Court's Establishment Clause decisions of the 1990s
have neither placed reliance on Marsh or Lynch, nor resorted to a nondoctrinal
analysis like that used in these cases. n323 County of Allegheny v. ACLU
involved a privately financed and erected nativity scene displayed on the "Grand
Staircase" of a public courthouse. n324 It included figures of the infant Jesus,
Mary, Joseph, farm animals, shepherds, and wise men around a wooden
representation of a manger, bearing at its crest an angel and a banner
proclaiming "Gloria in Excelsis Deo!," an expression from the Biblical book of
Luke translated as "Glory to God in the high- [*2136] est!" n325 The
plurality, unable to make sense of the majority decision in Lynch, applied
instead Justice O'Connor's endorsement test. The Court began by observing that
the display's "praise to God in Christian terms is indisputably religious -
indeed sectarian - just as it is when said in the Gospel or in a church
service." n326 Furthermore, the Court reasoned, "no viewer could reasonably
think that it occupies [its central location] without the support and approval
of the government" thereby "sending an unmistakable message that [the county]
supports and promotes the Christian praise to God that is the creche's religious
message." n327 Therefore, the Court held, "it necessarily follows that the
practice must be enjoined to protect the constitutional rights of those citizens
who follow some creed other than Christianity." n328 Finally, in Lee v. Weisman,
a Providence Rhode Island middle school sponsored a graduation ceremony in which
a Rabbi was invited to provide an invocation and benediction; the invocation
thanked "God of the Free, Hope of the Brave," for America's diversity, liberty,
political and judicial processes, and destiny, and ended "Amen." n329 The
benediction began "O God, we are grateful to You for having endowed us with the
capacity for learning" and concluded, "We give thanks to You, Lord, for keeping
us alive, sustaining us and allowing us to reach this special, happy occasion.
Amen." n330 Ostensibly applying some form of coercion test, n331 Justice
Kennedy, writing for the majority, found the commencement prayers
unconstitutional: "What to most believers may seem nothing more than a
reasonable request that the nonbeliever respect their religious practices, in a
school context may appear to the nonbeliever or dissenter to be an attempt to
employ the machinery of the State to enforce a religious orthodoxy." n332 In
language reminiscent of Engel and Schempp, Justice Kennedy rejected the argument
that the prayers

are of a de minimis character. To [accept such an argument] would be an affront

to the rabbi who offered them and to all those for whom the prayers were an
essential and profound recognition of divine authority. And for the same reason,
we think that the intrusion is greater than the two minutes or so of time
consumed for prayers like these. Assuming, as we must, that the prayers were
offensive to the student and the parent who now object, the intrusion was both
real and, in the context of a secondary school, a violation of the objectors'
rights. That the in- [*2137] trusion was in the course of promulgating
religion that sought to be civic or nonsectarian rather than pertaining to one
sect does not lessen the offense or isolation to the objectors. At best it
narrows their number, at worst increases their sense of isolation and affront.
n333

With the endorsement test, its subsidiary principles, and knowledge of its
general application at our disposal, we may now, at last, analyze the
constitutionality of the core forms of ceremonial deism.

B. Application of Establishment Clause Jurisprudence to Core Ceremonial Deism

1. Legislative Prayers n334 and Prayer Rooms.

- In Congress, each legislative day typically begins with an ordained,

appropriately attired, Christian minister delivering a formal prayer to God (and
often, to Jesus Christ). That these prayers have the official Congressional
stamp of approval is evidenced by (1) Congress's selection and employment of the
chaplains; (2) Congress's invitation to these chaplains to deliver prayers from
the floor of the House and Senate; and (3) the printing of these prayers in the
official transcript of Congress, the Congressional Record. Moreover, these
prayers are not delivered merely to a private audience affirmatively seeking
spiritual guidance, as might be the case in the military, prisons, or hospitals.
n335 Because Congress is a public body, the gallery is typically filled with
spectators including ordinary citizens, and, quite frequently, school children
who are brought to Capitol Hill to learn more about the inner workings of their
government. Perhaps even more significantly, the daily proceedings of both the
House and the Senate are now televised live on cable television, gavel to gavel.
n336 The potential viewing audience is, therefore, unlimited and is likely to
include children assigned to watch the coverage for school assignments.
Legislative prayer consists of "solemn avowal of divine faith and supplication
for the blessings of the Almighty. The nature of such a prayer [*2138] has
always been religious ...." n337 Furthermore, its sectarian nature cannot be
ignored. Every Chaplain selected by Congress in the more than two hundred years
of its existence has been Christian. n338 Americans who regularly observe
congressional proceedings quickly ascertain that these prayers embrace them only
if they happen to be Christian. How else could a non-Christian interpret a
prayer that our civilization ""can be saved only by becoming permeated with the
spirit of Christ'" n339 and prayers of similar substance? n340 This "praise to
God in Christian terms is indisputably religious - indeed sectarian - just as it
is when said in the Gospel or in a church service." n341 Analyzing legislative
prayer through the endorsement test lens reveals that this practice does not
pass constitutional muster. Leaving the obvious purpose of this practice aside,
there can be no doubt that legislative prayer sends a message to non-Christians
and nonbelievers that "they are outsiders, not full members of the political
community, and an accompanying message to [Christians and believers] that they
are insiders, favored members of the political community." n342 Legislative
prayer "infringes the religious liberty of the nonadherent" by placing ""the
power, prestige and financial support of government'" behind the religious
message embodied by the prayers. n343 The objective, reasonable observer, no
matter how well informed about the "history and context" n344 of the [*2139]
practice, could scarcely escape such a conclusion. As Justice Kennedy observed
in Allegheny, "it seems incredible to suggest that the average observer of
legislative prayer who either believes in no religion or whose faith rejects the
concept of God would not receive the clear message that his faith is out of step
with the political norm." n345 Legislative prayer involves two of the greatest
evils envisioned in the Court's jurisprudence. First, the selection of
exclusively Christian chaplains and the content of many of their prayers express
a sectarian preference for Christianity. Second, although the practice does not
occur in public schools, it clearly penetrates them. n346 The practice is at
least as offensive to the Establishment Clause as the nondenominational prayers
in Engel and Lee, which did not involve any sectarian preferences, and the
nativity scene in Allegheny, which, although expressing a sectarian preference,
was a passive practice that occurred a few days a year. Even the sectarian
prayers at issue in Schempp seem milder in content than those delivered by the
congressional chaplains, and the prayers in Schempp were not delivered by
ordained Christian ministers in the employ of the government. If the purpose of
legislative prayer is to provide a serious and solemn mood to congressional
deliberations, surely this goal can be accomplished effectively through
nonreligious means. For instance, House and Senate sessions could commence with
brief readings from historical documents and/or tributes to the nation's
founders or other great Americans. n347 Indeed, in view of the scant attendance
by members of Congress at the opening prayers, it is disingenuous to suggest
that the prayers actually solemnize legislative affairs. If the principles
embodied in the Supreme Court's Establishment Clause jurisprudence are to have
any meaning at all, legislative prayer must be found unconstitutional.
Consequently, the Court's decision in Marsh must be rejected as flawed. n348 As
Justice Brennan suggested in his Marsh dissent, tongue in cheek, any group of
law students asked to apply Lemon to legislative [*2140] prayer "would nearly
unanimously find the practice to be unconstitutional." n349 Similarly,
congressional prayer rooms violate the Establishment Clause. As discussed above,
the congressional prayer room became a reality at a time when Congress sought to
infuse spirituality into the Cold War against the Soviet Union. n350 Although
some, no doubt, supported the legislation to help the cause of Christianity,
n351 analysis of the legislative history reveals that its primary intent was
both to encourage prayer and to demonstrate that Americans believed in prayer.
n352 Thus, the "actual purpose" of the prayer legislation was to endorse
religion over nonreligion. n353 Like the moment of silence law declared
unconstitutional in Wallace, the prayer room legislation "was enacted to convey
a message of state endorsement and promotion of prayer." n354 As no other
purpose appeared on the face of the legislation or in its legislative history,
it is fair to say that that purpose "predominated" n355 and that, like the
statute at issue in Wallace, the prayer room legislation had "no secular
purpose." n356 It, therefore, violates the endorsement test's purpose prong.
Moreover, the prayer room established in the Capitol conveys this message of
endorsement to all who come in contact with it and, therefore, violates the
endorsement test's effect prong as well. The room's placement off the rotunda of
the Capitol, the depiction of President Washington at prayer, the inscription of
the words of the Sixteenth Psalm, and the religious imagery and motto of the
Great Seal of the United States engraved in the room's walls n357 all suggest to
the objective observer that the United States Congress endorses a belief in God,
religion in general, and prayer specifically. Furthermore, as for the open Bible
on the oak altar, "surely the place of the Bible as an instrument of religion
cannot be gainsaid." n358 The message conveyed by the prayer [*2141] room is
no less significant than the message conveyed by the government's sponsorship of
the nonsectarian Regents' prayer in Engel or nonsectarian commencement prayer in
Lee. As Justice Kennedy stated in Lee, at best the nonsectarian nature of the
prayer room narrows the number of those excluded by it from the political
community; "at worst [it] increases [the nonadherents'] sense of isolation and
affront." n359 Finally, the prayer room cannot be defended by labeling it an
accommodation of legislators' religious practices and beliefs. Such a purpose
was manifest neither on the face of the legislation nor in its legislative
history. n360 Moreover, to be permissible as an accommodation, the prayer room
would have to remove a discernable burden on the religious practice of
legislators. n361 Not only do legislators have available to them a wide array of
places of worship on Capitol Hill, but they can also pray in their offices, the
committee rooms, or the chambers of the Capitol at any time they desire just as
readily and easily (perhaps more so) than they could in the prayer room itself.
n362

2. Prayers at Presidential Inaugurations.

- There is perhaps no more of a defining moment in the American democracy than

the inauguration of a new President. Inaugural prayers are quite different from
legislative prayers in that they are patently intended for all Americans, the
thousands in attendance, and millions - including school children in their
public classrooms - watching the proceedings live on television. The world and
national leaders in attendance and the pomp and circumstance of the event lend
the government's stamp of approval to every item on the official inaugural
agenda. And the first and last such item on the agenda is typically a prayer by
a Christian minister. n363 Just like legisla- [*2142] tive prayers, inaugural
prayers are typically devoutly religious and usually contain Christian
references. n364 Inaugural prayer violates the endorsement test's effect prong
for the very same reasons legislative prayer does because it too endorses
religion over nonreligion and Christianity over other religions. n365 If the
purpose of inaugural prayer is to solemnize the seriousness of the occasion,
surely this function can be achieved equally effectively through nonreligious
means. Consequently, inaugural prayer is unconstitutional. n366

3. Presidential Addresses Invoking the Name of God.

- The practice of presidents invoking the name of God during official addresses
presents a different problem than that posed by legislative and inaugural
prayers. First, such a practice does not involve selection of a member of a
clergy to perform a religious function on behalf of the government. Second, this
practice typically does not involve a formal prayer. n367 Third, and most
significant, when the President speaks, it is very difficult to draw the line
between the individual and the office; to the extent that the individual is
perceived to be speaking, a reasonable, objective observer would not view the
President's references to God as governmental endorsement of religion. The
objective observer would understand that the President does not surrender his
First Amendment right to speak freely upon taking the oath of office. n368
Another issue that exists in this context, but not in the context of legislative
and inaugural prayers, is the enforceability of a constitutional prohibition.
Even if a supplication to God in a presidential address is unconstitutional, how
would such a rule be enforced? By federal marshals under perennial instructions
to monitor the President's words and to physically restrain him from referring
to the deity? Even if a court could be persuaded to enjoin this practice, can we
seriously expect the injunction to be enforced by holding the President in
contempt for violating it? Consequently, I conclude, with some hesitation, that
the practice of lacing presidential addresses with appeals to the deity is not
prohibited by [*2143] the Supreme Court's Establishment Clause jurisprudence.
n369 As a purely prudential matter, however, presidents should refrain from
wrapping their speeches in religious imagery, for in doing so they certainly can
make Americans feel like outsiders in their own political community. Moreover, a
constitutional line can be drawn between word and action through, for example, a
proclamation or executive order, since the latter is clearly governmental action
rather than individual speech. n370

4. The Invocation "God save the United States and this Honorable Court" Prior to
Judicial Proceedings.

- Although brief, this judicial invocation "is a supplication, a prayer." n371

This prayer is similar to legislative and inaugural prayers in that it occurs
just prior to official government business and is imbued with the same sort of
governmental approval. However, unlike those prayers, it is typically delivered
by a bailiff or crier, rather than a minister. Moreover, although the public is
invited to attend, the audience is typically much smaller - consisting only of
those in attendance in the courtroom. Further, the prayer is static and,
therefore, never sectarian. Nevertheless, the intended audience is significantly
more captive than those to whom legislative and inaugural prayers are addressed,
since most people present in the courtroom are there to conduct official
business. The judicial invocation violates the endorsement test's effect prong.
Just like the nonsectarian prayer at issue in Engel, which also referred to God
just once, the judicial invocation "conveys a message that religion or a
particular religious belief is favored or preferred" n372 and "sends a message
to nonadherents that they are outsiders, not full members of the political
community, and an accompanying message to adherents that they are insiders,
favored members of the political community." n373 That this message is
nonsectarian does not lessen the endorsement. n374 Those who are required to be
in court to conduct official business must listen to [*2144] the government's
endorsement of a transcendent, monotheistic, Judeo-Christian God. n375 It is
noteworthy that Justice Douglas, who in Zorach had curtly remarked that "[a]
fastidious atheist or agnostic could even object" to this invocation, n376 just
a decade later had considerably changed his view of the constitutional
significance of this practice. In Engel, Justice Douglas, noting that the
Court's invocation takes about the same amount of time as the 22-word school
prayer at issue there, wrote that "for me the principle is the same, no matter
how briefly the prayer is said, for ... the person praying is a public official
on the public payroll, performing a religious exercise in a governmental
institution." n377 Even one of the most conservative members of the Supreme
Court, Justice Scalia, recognizes that the judicial invocation conveys a message
of endorsement. n378 If the goal is to solemnize the proceedings that follow the
invocation, surely, as with legislative and inaugural prayer, it can be
accomplished through nonreligious means. For instance, Judge Lynn N. Hughes of
the Southern District of Texas convenes his courtroom with an alternative cry
that concludes "Long live the United States and the Honorable Court." n379 It is
difficult to believe that there is less solemnity in Judge Hughes' courtroom
than those of his fellow judges because of his adjustment of the age-old cry.
n380

5. Oaths of Public Officers, Court Witnesses, and Jurors and the Use of the
Bible to Administer Such Oaths.

- As was the case with Sunday Sabbath [*2145] laws, there can be little
dispute that the purpose of public officer and courtroom oaths was initially
religious: namely, to employ the fear of eternal damnation to assure that public
officers were worthy of the public's trust and that witnesses and jurors would
tell the truth. n381 Thus, the key question is whether the religious purpose
behind asking public officials, witnesses, and jurors to tell the truth "so help
me God" has disappeared. The only logical answer to this question is that it has
not; otherwise, the phrase "so help me God" would serve no purpose at all. n382
Moreover, the effect of such oaths is to endorse religion because they send an
inescapable message to nonadherents that they are outsiders in the American
political community. When the Chief Justice of the Supreme Court asks the
President-elect to place his left hand on the Christian Bible, a sacred
religious text, and to swear the words "so help me God," nonadherents cannot
help but feel left out. In this one act, the highest officials of two branches
of the federal government, in an official ceremony like none other in this
country, through word and act, embrace the Christian Bible and the God
envisioned therein. It is difficult to understand why Torcaso v. Watkins n383
does not compel the conclusion that this practice violates the Establishment
Clause. In that case, the State of Maryland permitted elected and appointed
officials to take office only upon a declaration that they believed in God. The
Court invalidated this requirement on Establishment Clause - not Free Exercise
Clause - grounds. n384 If the Court had invalidated this practice on Free
Exercise grounds, the sweep of its holding would have extended only to practices
requiring similar compulsion. But because the Court chose to ground its opinion
on the Establishment Clause, which relates to the purpose and effect of the
government's conduct, Torcaso stands for the broader proposition that government
officials' involvement in accepting an oath to God offends the First Amendment
whether that oath is compelled or not. In language foreshadowing the endorsement
test, the Court in Torcaso ruled that the requirement did not pass muster
because "the power and authority of the State of Maryland thus is put on the
side of one particular sort of believers - those who are willing to say they
[*2146] believe in "the existence of God.'" n385 The same could be said when
government agents ask public officials to swear their oaths "so help me God."
That officials can decline to do so does not change the fact that a government
agent has placed a Bible in front of them and asked them to do so, thereby
placing governmental "power and authority ... on the side of one particular sort
of believers - those who are willing to say they believe in the existence of
God." n386 The courtroom oath similarly violates the endorsement test's effect
prong. Indispensable to that oath and to the administration of justice is the
Christian Bible, which is typically left in open view in American trial
courtrooms much like the Ten Commandments in Stone n387 and the nativity scene
in Allegheny. n388 By using a Christian Bible to administer the courtroom oath,
courts embrace the Bible every bit as much as the school system in Stone
embraced the Ten Commandments and the county in Allegheny embraced the nativity
scene. "No viewer could reasonably think that [the Bible] occupies [its place in
the courtroom, as the creche did on the staircase of the county government
building,] without the support and approval of the government." n389 The
courtroom oath is also unconstitutional because government officials, cloaked
with the authority which comes with being part of the administration of justice,
ask witnesses and jurors to place their hands on that Bible and to tell the
truth, "so help me God." A witness or juror who [*2147] does not believe in
the Christian Bible, in swearing to God, or in the God envisioned in the oath,
must publicly declare her disbelief in front of (and with the likely perception
of disapproval of) a judge and her fellow citizens. If the government is
forbidden from coercing a statement of belief, n390 it should be equally
forbidden from coercing a confession of nonbelief. Finally, if in Engel there
was subtle coercion of schoolchildren to listen to the Regents's prayer and in
Lee of middle school children to acquiesce in taking part in the graduation
invocation, the courtroom oath can be said to involve actual coercion of
witnesses and jurors to say "I do" even if they do not. The public officer's
oath and courtroom oath are classic examples of the government using religious
means to accomplish wholly secular goals. If the intended function of the public
officer's oath is to impress upon the officeholder the solemnity of the occasion
and the seriousness of the responsibility she is about to undertake, the person
administering the oath, instead of asking the official to say "so help me God,"
can inform her of the consequences (in this life) of the failure to perform her
obligations faithfully and in accordance with law. If the intended function of
the courtroom oath is to impress upon witnesses and jurors the importance of
telling the truth, informing them of the consequences of perjury (without using
a Christian Bible) n391 should achieve this goal equally, if not more,
effectively. n392 [*2148]

6. The Use of "in the year of our Lord" to Date Public Documents.

- The use of the phrase "in the year of our Lord" on public documents implies
that Jesus Christ is the official Lord of the governmental entity issuing the
document. n393 As the Court concluded in Allegheny with respect to a county
creche display, "praise to God in Christian terms is indisputably religious -
indeed sectarian - just as it is when said in the Gospel or in a church
service." n394 No one viewing a governmental document so dated could reasonably
conclude that the phrase had been included on the document, as the creche in
Allegheny had stood on the staircase of the county government building, "without
the support and approval of the government, [and this] sends an unmistakable
message that [the government] supports and promotes the Christian praise to God
that is the [phrase's] religious message." n395 This phrase cannot be defended
as merely serving to fix the exact date of the document. First, no one would
confuse a date in the twentieth century, such as 1996, with 1996 B.C. Second,
the phrase "in the year of our Lord" refers to more than historical fact like
"B.C.," "Before Christ." Rather, the phrase "in the year of our Lord" suggests
that Jesus Christ is the Lord of both the issuer and the recipient of the
document - if not the public generally - whether this is true or not. For the
nineteen percent of Americans who do not identify themselves as Christians, n396
it is difficult to understand why they must accept this sectarian custom. This
practice is precisely the type of governmental endorsement the Supreme Court's
Establishment Clause jurisprudence forbids. n397 [*2149]

7. The Thanksgiving and Christmas Holidays.

- Government holidays like Thanksgiving and Christmas are official governmental

endorsements of those holidays: by definition, they are selected from the
365-day calendar for special governmental recognition. The question regarding
these holidays is whether the governmental endorsement includes an endorsement
of religion. n398 The Thanksgiving holiday was unquestionably a religious
holiday both at Plymouth Rock and when George Washington proclaimed the first
American Thanksgiving to acknowledge the many signal favors of Almighty God.
n399 Many would argue that these religious roots have given way to some other,
nonreligious meaning and would point to the abundance of secular activities
which have become associated with this holiday, including travel, family
reunions, turkey and stuffing, professional football games, and the like. n400
Nevertheless, alongside of these secular aspects of Thanksgiving, the religious
aspect - as well as the government's endorsement of that aspect - endures. When
the President uses the occasion of Thanksgiving to urge Americans to read the
Holy Scriptures, as President Roosevelt did, or to "acknowledge the bounty and
mercy of Divine Providence" by gathering in their places of worship, as
President Clinton did, n401 it cannot be doubted that the "holiday has not lost
its theme of expressing thanks for Divine aid ...." n402 As Justice Kennedy
stated in Allegheny, "it requires little imagination to conclude that these
[Thanksgiving] proclamations would cause nonadherents to feel excluded ...."
n403 Thus, although the endorsing effect of the Thanksgiving holiday is not as
pronounced as the endorsing effect of legislative and inaugural prayer, the
Thanksgiving holiday is nonetheless an unconstitutional endorsement of religion.
[*2150] The Christmas holiday is an even clearer violation of the endorsement
test. Although, like Thanksgiving, secular elements have attached to this
holiday over the years, the religious purpose and effect of this holiday remain
unmistakable. The holiday is, after all, the celebration of the birth of the
lord and savior of a particular religion, Christianity. The very name of the
holiday - connoting Christ's Mass - reveals its religious significance every bit
as much as presidential Christmas statements imploring Americans to "extend to
others the same love and mercy that God showed humankind when He gave us His
only Son." n404 The Supreme Court has squarely acknowledged that "Christmas [has
not] lost its religious significance." n405 It is difficult to comprehend why
the Court would recognize the Establishment Clause violation caused by a
symbolic depiction of the holiday n406 without simultaneously recognizing that
the holiday itself violates the Establishment Clause for precisely the same
reasons. n407 Just as the government endorses the religious message of a creche
by displaying it in the county courthouse, the government also endorses the
religious message of the holiday by singling it out for special recognition as a
holiday and ceasing government services on that day. n408 [*2151]

8. The National Day of Prayer.

- As was demonstrated above, the National Day of Prayer was a national response
to an evangelical sermon by the Reverend Billy Graham. n409 Its explicit purpose
was and is to set aside a day for Americans to turn to God in prayer; indeed, in
Allegheny, Justice Kennedy noted that the statute "is a straightforward
endorsement of this concept." n410 If the State of Alabama in Wallace violated
the Establishment Clause by enacting moment-of-silence legislation with an
implicit purpose of "conveying a message of state endorsement and promotion of
prayer," n411 then the federal government has even more clearly violated the
Clause by enacting legislation in which that purpose is explicit. n412

9. The Addition of the Words "under God" to the Pledge of Allegiance.

- The addition of the words "under God" to the Pledge of Allegiance does, and
was intended to, have the effect of endorsing religion. The legislative history
of the Pledge amendment mirrors the legislative history behind the
moment-of-silence law in Wallace and the anti-evolution statute in Epperson. In
Wallace, the bill's sponsor stated that the legislation was intended to provide
children ""the opportunity [to] share in the spiritual heritage of this state
and country.'" n413 The sponsor of the Pledge amendment stated that his bill
would cause ""the children of our land, in the daily recitation of the pledge in
school, [to] be daily impressed with a true understanding of our way of life and
its origins.'" n414 In Epperson, there was clear evidence that the
anti-evolution statute was enacted to demonstrate that Arkansans believed in the
Bible, not atheism. n415 As the sponsor of the Pledge amendment stated, the
legislation was intended to [*2152] contrast America's embrace of Almighty God
with Communist Russia's embrace of atheism. n416 Indeed, like the National Day
of Prayer, the genesis of the Pledge amendment occurred not in Congress, but in
the pulpit. n417 Although the effect of including the words "under God" in the
Pledge of Allegiance may be less pronounced than the effect of the prayers at
issue in Engel, Schempp, and Lee, the daily recitation of the amended Pledge of
Allegiance nevertheless sends a message to students who do not believe in a
monotheistic god "that they are outsiders, not full members of the political
community" n418 and instills in them a perception of "disapproval[] of their
individual religious choices." n419 That this message is nonsectarian does not
lessen the endorsement. n420 Finally, like the constitutionally infirm practices
at issue in those cases, the Pledge of Allegiance is customarily recited in
public schools, n421 where impressionable children are a captive audience.
Assuming for a moment that coercion is somehow related to the endorsement
question, it is difficult to distinguish the coercion involved in forcing
students to recite the Pledge of Allegiance from that involved in forcing them
to recite or passively listen to the prayers at issue in Engel, Schempp, and
Lee. Indeed, it is arguable that the opt-out provisions in Engel and Schempp and
the ability to bypass the graduation ceremony in Lee made the coercion present
in those cases less onerous than that in the case of the daily Pledge
recitation. n422 No lesser authorities than Chief Justice Burger, Justice
Kennedy, and Justice Scalia have opined that the current Pledge of Allegiance
en- [*2153] dorses religion every bit as much as the endorsements found in
those cases. n423

10. The National Motto "In God We Trust."

- It would take an exceptionally creative argument to suggest that a national

motto is not a government endorsement of the content of the motto or that the
phrase "In God We Trust" does not embrace religion and a monotheistic god. The
legislative history of the various statutes spawning the motto merely serves to
underscore its obvious purpose:

At the base of our freedom is our faith in God and the desire of Americans to
live by His will and by His guidance. As long as this country trusts in God, it
will prevail. To remind all of us of this self-evident truth, it is proper that
our currency should carry these inspiring words .... n424

Although, like the Pledge of Allegiance, the effect of "In God We Trust" is not
as pronounced as other endorsements, its pervasiveness on currency serves as a
daily reminder to those who do not believe in a monotheistic god "that they are
outsiders, not full members of the political community" n425 and instills in
them a perception of "disapproval[] of their indi- [*2154] vidual religious
choices." n426 That this message is non-coercive and nonsectarian does not
lessen the endorsement. n427

IV. Do Arguments in Favor of Preserving Core Ceremonial Deism HaveMerit?

Having concluded that all but one of the various forms of core ceremonial deism
I have addressed in this Article violate the Establishment Clause, I pause now
to consider whether any valid arguments can nevertheless be constructed to
defend these practices from constitutional invalidation. Judges and commentators
have formulated several such arguments, many of which blend into one another and
embody similar themes. I now turn my attention to analyzing these arguments
seriatim.

A. Original Intent

I readily concede that the arguments advanced above fly in the face of the
original intent of the Framers of the First Amendment. Chief Justice Burger's
statement in Marsh that, in the case of legislative prayer, "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" n428 is highly
persuasive. The same argument can be employed to defend most of the practices I
have chronicled above. I seri- [*2155] ously doubt that any of the Framers
would have found these practices troubling, notwithstanding the First Amendment.
n429 But unless we are prepared to return to the days when presidential
inaugurations include church services, when the House and Senate chambers are
used for regular Sunday church services, when Congress may charter a religious
institution, when our military institutions can compel those in service to
attend religious worship service, and when the Supreme Court can refer to
America as a Christian nation, n430 we cannot, as Chief Justice Burger did, let
an originalist analysis end the inquiry. n431 The Supreme Court has recognized
time and time again, in myriad contexts, that the Constitution is not a static
document frozen in time and constricted by the predilections of those who framed
it. n432 Were it otherwise, African-Americans would still be subjected to Jim
Crow laws, segregated schools, n433 and miscegenation statutes; n434 women would
not [*2156] be entitled to the protections of the Equal Protection Clause;
n435 seditious libel could still be a crime, as it was in 1798; n436 and the
list goes on and on, as it should. n437 Indeed, in McGowan, the Court all but
conceded that Sunday Sabbath laws could not withstand constitutional scrutiny if
they had retained their religious purpose, even though it is amply clear that
the Framers favored such laws precisely because of their religious pur- [*2157]
pose. n438 The key question is not what the Constitution meant in 1789 or 1791,
but what it should mean today. n439 The religious composition and habits of
contemporary America are so radically different from those at the time of the
founding that using the founding as a baseline is a non sequitur. At the time of
the founding, nearly one hundred percent of the nation's citizens were
Christian, and most of them were Protestant. n440 Established churches existed
in ten of the thirteen colonies, four of which continued those establishments
well beyond the adoption of the First Amendment; blasphemy and Sabbath laws were
in place everywhere. n441 By sharp contrast, today Christians [*2158] comprise
only eighty-one percent of the American population, over thirteen million
Americans do not believe in God at all, six million Muslim Americans and four to
five million Buddhist Americans do not believe in the Judeo-Christian concept of
God, and those who do believe in God are divided into over 1200 different
religions. n442 The America of 1996 is one in which the endorsement test, not
originalism, asks the right questions. n443 If there is to be freedom of
religion in this country today of the type the Framers contemplated 220 years
ago, some practices that seemed perfectly permissible then cannot be perfectly
permissible now. n444 Otherwise, only eighty percent of [*2159] Americans
would truly have freedom of religion while the remainder would be constantly
reminded that their government considers them second-class citizens. Even
conservative scholar Robert Cord, an advocate of an originalist interpretation
of the Establishment Clause, tempers his approach to recognize and account for
the profound changes in our society since the founding regarding matters of
religion:

In a religiously homogeneous society, governmental legislation that in some way

uses, touches, or benefits religion may be by definition nondiscriminatory. That
seemed to be the case in the United States when Christianity in its many
varieties was used by the Federal Government in the eighteenth and much of the
nineteenth centuries as a means of accomplishing secular goals. In twentieth
century America that is no longer the case. The religious pluralism that now
exists in the United States has as a consequence made the historic prohibitions
of the Establishment Clause more delimiting of governmental actions. Today,
because of the present religious diversity in the nation, public-sponsored
activities that were nondiscriminatory in the past can no longer be reconciled
with the First and Fourteenth Amendments' ban against placing any purely
sectarian activity identified with one religious tradition into a preferred
position. n445

In the immortal words of Justice Oliver Wendell Holmes,

it is revolting to have no better reason for a rule of law than that so it was
laid down in the time of Henry IV. It is still more revolting if the grounds
upon which it was laid down have vanished long since, and the rule simply
persists from blind imitation of the past. n446
[*2160]

B. Solemnization/Acknowledgement

The argument most frequently advanced by contemporary Supreme Court Justices to

justify ceremonial deism, and the one advanced by Justice O'Connor, the
endorsement test's founder, is that ceremonial deism
serves, in the only ways reasonably possible in our culture, the legitimate
secular purposes of solemnizing public occasions, expressing confidence in the
future, and encouraging the recognition of what is worthy of appreciation in
society. For that reason, and because of their history and ubiquity, those
practices are not understood as conveying government approval of particular
religious beliefs. n447

Similarly, Chief Justice Burger wrote in Marsh that

in light of the unambiguous and unbroken history of more than 200 years, there
can be no doubt that the practice of opening legislative sessions with prayer
has become part of the fabric of our society. To invoke Divine guidance on a
public body entrusted with making the laws is not, in these circumstances, an
"establishment" of religion ... [but] simply a tolerable acknowledgment of
beliefs widely held among the people of this country. n448

In the same vein, Justice Brennan has characterized ceremonial deism as

uniquely suited to serve such wholly secular purposes as solemnizing public

occasions, or inspiring commitment to meet some national challenge in a manner
that simply could not be fully served in our culture if government were limited
to purely nonreligious phrases. The practices by which the government has long
acknowledged religion are therefore probably necessary to serve certain secular
functions, and that necessity, coupled with their long history, gives those
practices an essentially secular meaning. n449

Boiled down to its essence, this rationale suggests that the practices I have
labeled as ceremonial deism are constitutionally permissible because they are
(1) necessary to set some governmental events and actions apart from [*2161]
others as being truly important, serious, or special (solemnization); and (2) so
ingrained in our history and traditions that the public has come to expect
government to embrace religion where it has customarily done so
(acknowledgement). n450 As for the solemnization element of this argument, it is
particularly odd that Justice Brennan would suggest that some religious
practices are necessary to achieve secular goals. It was Justice Brennan, after
all, who first espoused the view that "government may not employ religious means
to serve secular interests, however legitimate they may be, at least [not]
without the clearest demonstration that nonreligious means will not suffice."
n451 And it was Justice Brennan who, in Marsh, thoroughly excoriated the
majority's solemnization rationale regarding legislative prayer. n452 As was
demonstrated in Part III, there are nonreligious means available which are
equally, if not more, effective than religious means for "solemnizing public
occasions" and "inspiring commitment to meet some national challenge." n453 For
example, for most citizens, the penalty of perjury conveys the seriousness of
the courtroom oath at least as effectively as the risk of eternal damnation; the
austerity of black-robed federal judges, their power of contempt, and their
control over federal marshals create a solemn mood in their courtrooms without
the necessity of an invocation to God; the pomp and circumstance of presidential
inaugurations instill the required atmosphere in the absence of an ordained
minister opening the ceremony with a prayer; and the importance of presidential
proclamations and similar documents is readily apparent without the notation "in
the year of our Lord." n454 Further, the solemnization argument is es- [*2162]
pecially strained in the case of legislative prayers to empty congressional
chambers. n455 Moreover, if religious means can be justified by this
solemnization function, despite their incompatibility with the governing
normative Establishment Clause test, why should constitutional permissibility
end with ceremonial deism? Why not permit formal church services during all
public events? Why not permit school prayer? If a line must be drawn, it makes
considerably more sense to draw it at the point at which the endorsement test is
violated, rather than at the point at which most Americans feel an enhanced
sense of solemnity resulting from religion's presence; the latter path can
ultimately lead to the establishment of the Christian religion. n456 [*2163]
The acknowledgement aspect of this argument is flawed for the same reason the
original intent justification is flawed: that a practice was embraced by the
Founders, and/or has endured for decades or centuries, does not immunize it from
constitutional scrutiny. n457 If history and tradition were sufficient to
validate long-standing practices against constitutional attack, discrimination
against people of color and women, both of which persisted at and long after the
enactment of the Fourteenth Amendment, would be constitutionally permissible. In
its wisdom, the Court has looked beyond history to recognize that discriminatory
practices cannot be squared with the Fourteenth Amendment. Much like the
discrimination that existed against people of color and women from the beginning
of the nation's history, there has been a similar history of discrimination
against non-Christians, and the Court has squarely recognized that America's
"heritage of official discrimination against non-Christians has no place in the
jurisprudence of the Establishment Clause." n458 As a consequence, the Court has
declared school prayers, a graduation prayer, and a publicly sponsored nativity
scene to be unconstitutional notwithstanding their long history and traditions
in both the communities involved and the nation as a whole. n459 Hence, even the
seemingly [*2164] innocuous practices that constitute ceremonial deism cannot
be justified by history and tradition, for doing so would validate the very
historical discrimination that the Court has stated should play no part in
Establishment Clause jurisprudence. Furthermore, instead of operating as a
source of constitutional immunity, it is more plausible to view the
long-standing nature of a governmental religious practice as a red flag that it
may be an unconstitutional vestige of the established churches that existed
prior to, at, and following the enactment and ratification of the First
Amendment. n460 Practices such as legislative and inaugural prayers, the
judicial invocation, oaths, use of "in the year of our Lord," the Thanksgiving
holiday, and the National Day of Prayer could be better understood in this
context than the solemnization/acknowledgement rationale. Finally, rather than
insulating ceremonial deism from constitutional attack, the longevity of the
practices at issue makes their affront to religious minorities even more acute
than would otherwise be the case. Not only must religious outsiders tolerate
these practices now, but they must also do so with the awareness that those who
share their religious beliefs have endured these practices for generations. This
is one reason why slavery and racial discrimination can still be such painful
subjects for African-Americans today. That slavery had become part of the
"fabric of society" makes the constitutional violation more, not less, palpable.
The same can be said for long-standing violations of the Establishment Clause.

C. Loss of Religious Significance

Another popular argument used to justify the constitutional permissibility of

ceremonial deism is that through rote repetition, n461 transformations which
have occurred over time, n462 and the emergence of secular [*2165] and
patriotic traditions associated with religious holidays, n463 these practices
have lost whatever religious significance they may once have had. This argument
brings ceremonial deism under the umbrella opened by McGowan, in which the Court
held that Sunday closing laws are constitutionally permissible because they have
lost the religious meaning inherent in their origin. n464 This argument is
flawed for three reasons. First, it is squarely at odds with the solemnization
argument just discussed. If the religious meaning associated with ceremonial
deism is "necessary to serve certain secular functions," as the solemnization
rationale purports, it cannot also be true that these practices have lost
whatever religious significance they may once have had. Second, this argument is
inconsistent with the abundant supply of cases that have used ceremonial deism
in the major premise of the "any more than" syllogism as a springboard from
which to hold a religious practice constitutional. n465 To make this syllogism
work, ceremonial deism must have a significant religious element; otherwise, the
syllogism would break down at the minor premise because the challenged practice
would advance religion more than the practices inserted into the major
(ceremonial deism) premise, rather than vice versa as intended. Indeed, courts
which have employed the ceremonial deism syllogism have in the same breath as
doing so recognized that ""we are a religious people whose institutions
presuppose a Supreme Being.'" n466 Finally, and most significantly, under any
honest appraisal of modern American society, the practices constituting
ceremonial deism have not lost their religious significance. For instance, it
would probably come as a great surprise to most Christians that religion is no
longer a significant component of the Christmas holiday. It would likely be
equally surprising to the ministers delivering sermons on the floors of Congress
and [*2166] during presidential inaugurations that their actions, over time,
have lost religious significance. And although oaths, the judicial invocation,
"under God" in the Pledge of Allegiance, and the national motto seem fairly
innocuous at first blush, they pack a powerful religious punch to both the most
and the least devout members of the American population. Indeed, to better
understand the continued religious vitality of ceremonial deism, one need only
imagine the reaction of the general public, particularly its most religious
segment, if the Court were to declare that "under God" in the Pledge of
Allegiance or the national motto "In God We Trust" violates the Constitution.
The reaction would likely approximate the reaction to the school prayer
decisions of the 1960s; n467 the intensity of the reaction would be attributable
first and foremost to the perception that the Court had improperly removed
important religious traditions from the public square. The religious
significance of ceremonial deism has, therefore, not been lost to rote
repetition, time, or secular traditions. n468

D. De Minimis Endorsement

A fourth justification for leaving ceremonial deism undisturbed despite

technical incompatibility with the Establishment Clause hinges on the view that
the resulting violation of the Clause is de minimis, and not worthy of judicial
action. This argument posits that these practices are so innocuous even to
religious minorities, agnostics, and atheists that they cause too little harm to
be a real threat to religious liberty. n469 James [*2167] Madison himself
subscribed to this view, at least regarding the national days of fasting and the
Thanksgiving holiday he proclaimed while President. n470 This argument is flawed
for several reasons. First and foremost, the Supreme Court has stated several
times that "it is no defense to urge that the religious practices here may be
relatively minor encroachments on the First Amendment. The breach of neutrality
that is today a trickling stream may all too soon become a raging torrent ...."
n471 This slippery slope concern is particularly warranted in the case of
ceremonial deism because of its use in the "any more than" syllogism to
authorize an ever-expanding sphere of activities which are held constitutionally
permissible because they do not advance religion "any more than" the practices
embodying ceremonial deism. n472 The danger in not pulling the weed out at its
roots is illuminated by a recent district court decision upholding the
constitutionality of a statewide Good Friday holiday:

This court concludes that Good Friday and Christmas stand on equal footing
before the First Amendment. Christmas celebrates the birth of Christ, whereas
Good Friday commemorates Christ's crucifixion. Both Christmas and Good Friday
have been traditionally celebrated and acknowledged as religious holy days by
the Western world for many centuries.... [*2168] .... Thus, the obvious
similarities which exist between Thanksgiving, Christmas, and Good Friday
insulate the Good Friday holiday from a successful First Amendment challenge.
The Supreme Court's holding that Thanksgiving and Christmas, while religiously
significant, are nevertheless constitutionally inoffensive as public holidays,
mandates that this court similarly find that the Good Friday holiday is
constitutionally permissible. n473

Labeling ceremonial deism a mere de minimis endorsement of religion brings us

too close to the precipice of unfettered establishment. Second, whether a
violation of the Establishment Clause is "de minimis" cannot be reduced to
normative inquiry; it is rather a matter of perspective. n474 It is all too
simple for those in the religious mainstream to argue that pledging allegiance
to a nation "under God," whose motto is "In God We Trust," produces at most a de
minimis endorsement. n475 The magnitude of the endorsement, however, is enhanced
significantly for those for whom "God" has either no meaning or a meaning wholly
inconsistent with strongly held religious beliefs. n476 Those in the religious
mainstream can better appreciate this reality by substituting "Allah" for God in
these examples and the ones recounted in the opening paragraph in this Article.
If the examples embracing Allah appear to be more than de minimis violations of
the Establishment Clause to those in the religious [*2169] mainstream, merely
substituting "God" for "Allah" should not alter that constitutional reality.
Third, even when the message embodied by ceremonial deism is watered down into
its most nonsectarian formulation, its effect is more than de minimis on
religious outsiders. The watered-down, "nonsectarian" religious content
"amplifies the message of exclusion to those left out. Because such prayers are
carefully orchestrated not to offend anyone who counts in the community, the
message to those who are offended is that they do not count - that they are not
important enough to avoid offending." n477 Finally, "any form of government
support for religion readily slides into coercion by imperceptible degrees."
n478 Practices like the courtroom oath and the Pledge of Allegiance in the
schoolroom are excellent examples of just how coercive ceremonial deism can be
for those who do not believe in or are opposed to these practices. When a
Jehovah's Witness must publicly confess opposition to an oath, or an agnostic
child must ask to be excused from reciting the Pledge of Allegiance, something
more significant than a "de minimis" endorsement is at work.

E. Societal Acceptance

A closely related argument is that despite technical incompatibility with the

Establishment Clause, ceremonial deism should be left alone because American
citizens - even nonbelievers and religious minorities - overwhelmingly accept
these practices. n479 This rationale infers societal acceptance from the dearth
of complaints and litigation over ceremonial deism. It would be a huge leap to
deduce from the paucity of challenges to these practices that they have been
warmly embraced by the American citizenry. As history has poignantly made clear,
the price of challenging unconstitutional establishments of religion can be
exacting. The president of the American Civil Liberties Union recently wrote
that "often these victims of religious liberty violations do not want even to
file a claim in court, even when we assure them they would win, because of the
hostility, enmity, persecution, and attacks they would face." n480 As an
example, she recounted the startling facts surrounding a case involving a public
elementary and junior high school in Oklahoma which sponsored organized student
prayer meetings at the beginning of the school day until the [*2170] 1980s.
n481 Plaintiff children were harassed and insulted by teachers and students for
not attending the meetings. After suit was filed, upside-down crosses were taped
to their school lockers and the prize-winning goat of one of the children had
its throat slit; their mother was attacked by a school employee, who repeatedly
bashed her head against a car door and threatened to kill her; and, eventually,
the family's home was burned to the ground while the mother attended her son's
football game. n482 Violent responses to litigation challenging governmental
endorsements of religion are not simply a product of the violent times in which
we live. They result from the intensity with which religious believers savor and
cling to governmental endorsement. This was as true fifty years ago as it is
today. For instance, James Terry McCollum, who challenged a Christian
released-time program in Champaign, Illinois in the 1940s, n483 lived through
similar harassment and violence. During the pendency of the lawsuit, the
McCollum family received nearly six thousand hostile letters, some of which read
like this:

You slimy bastard

May your rotten soul roast into hell

Your filthy rotten body produced three children so that you can pilot them all
safely to hell

You are as stinking as a load of . n484

The young McCollum was called a "godless communist" and was beaten up so many
times that he had to be sent to Rochester, New York, to live with his
grandparents. n485 [*2171] Simply stated, the ostracism that befalls
plaintiffs who challenge cherished governmental endorsements of religion is so
extreme that most who are offended by these practices bite their tongues and go
about their lives. Moreover, in view of the dicta in Supreme Court and lower
court cases suggesting that ceremonial deism passes constitutional muster, n486
those who might be inclined to file suit must consider not only the hatred and
violence that their litigation will engender, but also the dismal prospect that
suffering through such harassment will be worth their while. Thus, the few cases
that are filed "represent only the tip of the iceberg" n487 and should not be
interpreted as widespread societal acceptance of these practices. n488 In
addition, there is a disturbing veneer to the societal acceptance argument that
majority acceptance equates with constitutional validity. The purpose of the
Constitution generally, and the Establishment Clause specifically, is to protect
minorities from raw majoritarian impulses. n489 That purpose "is undermined if
the majority's views govern the determination of whether the majority's
accommodation of its own "widely held' religious beliefs violates the Clause's
guarantee." n490 Using majority acceptance of ceremonial deism to justify its
constitutionality stands the Constitution on its head.

F. Accommodation

Still another argument that has been used to justify ceremonial deism is that
these practices merely serve to accommodate the religious practices of most
American citizens and, thus, should not be viewed as [*2172] unconstitutional
endorsement. n491 This rationale has been used most frequently to justify the
Christmas holiday:

When government decides to recognize Christmas Day as a public holiday, it does

no more than accommodate the calendar of public activities to the plain fact
that many Americans will expect on that day to spend time visiting with their
families, attending religious services, and perhaps enjoying some respite from
preholiday activities. The Free Exercise Clause, of course, does not necessarily
compel the government to provide this accommodation, but neither is the
Establishment Clause offended by such a step. n492
This argument is flawed for two reasons. First, when the government sets aside
the Christmas day as a national holiday, its true motive is to recognize the
religious meaning of the day, rather than to accommodate the religious practices
of American citizens. The sectarian Christmas messages delivered by our last
three Presidents on Christmas day make this point amply clear. n493 Second,
accommodation is permissible under the First Amendment only if it "lifts a
discernible burden on the free exercise of religion." n494 Just as "the display
of a creche in a courthouse [*2173] does not remove any burden on the free
exercise of Christianity," n495 governmental declaration of the holiday itself
removes no burdens because none exist. n496 Even if the government did not
declare Christmas a holiday, Christians would still be able to exercise their
religion on that day just as freely as they do on Christian holidays not
recognized by the federal and state governments, such as Good Friday, and just
as Muslims, Hindus, and other religious minorities do on their nongovernmentally
endorsed religious holidays. n497 To be sure, as is the case with the display of
a creche in a courthouse, prohibiting the governmental declaration of the
Christmas holiday also "deprives Christians of the satisfaction of seeing the
government adopt their religious message as their own; but this kind of
government affiliation with particular religious messages is precisely what the
Establishment Clause precludes." n498 The Free Exercise Clause may allow for
accommodation, but this "has never meant that a majority could use the machinery
of the State to practice its beliefs." n499

Conclusion

Since the emergence of its Establishment Clause jurisprudence nearly fifty years
ago, the Supreme Court has struggled mightily to explain why ceremonial deism is
permitted in our constitutional framework while other practices the Court has
invalidated are not. The normative vision embraced by the endorsement test is
blurred beyond recognition if practices such as legislative prayer, the National
Day of Prayer, a Pledge of Allegiance to a nation "under God," and the like are
permitted to persist. Any explanation of why these practices survive
constitutional scrutiny under this test, while school prayer and other practices
invalidated by the [*2174] Court do not, is hopelessly inadequate. As Justice
Kennedy noted in his Allegheny dissent, "either the endorsement test must
invalidate scores of traditional practices ... or it must be twisted and
stretched to avoid inconsistency with practices we know to have been permitted
in the past." n500 Equally, if not more problematic, the Court's embrace of the
"any more than" syllogism, coupled with its acceptance of ceremonial deism, has
created a slippery slope that will likely erode the endorsement test
significantly in the years ahead. If, however, the Court means what it says when
it espouses the principle that government may not, consistent with the
Establishment Clause, endorse religion and send messages to citizens that cause
them to feel like outsiders in the political community, the Court should have
the intellectual honesty and fortitude to recognize that ceremonial deism
violates a core purpose of the Establishment Clause. Undoubtedly, such a
decision will be very unpopular in an America in which the religious majority
has grown all too accustomed to seeing its practices and traditions endorsed by
the government. But the Court has in the past had the courage to make and
enforce unpopular decisions in the areas of segregation, school prayer, criminal
procedure, and abortion. Just as society has, in large measure, grown to accept
these decisions, American citizens can certainly learn to accept a decision that
will ensure that their grandchildren and great-grandchildren, no matter what
America's religious composition is in their time, will never be made to feel
like outsiders.
FOOTNOTES:
n1. As radical as this proposition may seem at first blush, it is by no means
an impossibility. Islam is the world's second largest faith; it is also the
fastest growing religion in the United States with nearly six million adherents
as of 1992 (some experts estimated 4.5 million), recently surpassing Judaism as
the second largest faith in this country. See Sylvester Monroe, The Fruits of
Islam: Muslim Faith Grows in Followers and Respect, Emerge, Mar. 1994, at 38.

n2. Cf. Marvin E. Frankel, Religion in Public Life - Reasons for Minimal Access,
60 Geo. Wash. L. Rev. 633, 642 (1992) (envisioning Muslims controlling school
boards in 2090 and requiring "that everyone in school face east in a kneeling
posture five times daily, bending forward periodically head to ground"). I
recognize that this hypothetical can be interpreted as playing upon American
stereotypes of the Islamic religion and culture. My intent in selecting the
Islamic religion for this hypothetical was not to play on those stereotypes, but
rather to select a religion both distinct from Christianity and Judaism and
growing in significance in this country.

n3. "Congress shall make no law respecting an establishment of religion ...."

U.S. Const. amend. I.

n4. See infra notes 313319, 397, 423, 427 and accompanying text.

n5. See Engel v. Vitale, 370 U.S. 421, 422, 424 (1962) (declaring
unconstitutional the following prayer recited at the beginning of the school day
in all public schools: "Almighty God, we acknowledge our dependence upon Thee,
and we beg Thy blessings upon us, our parents, our teachers and our Country."),
discussed infra text accompanying notes 299306.

n6. See Stone v. Graham, 449 U.S. 39, 39 n.1, 41 (1980) (per curiam)
(invalidating statute requiring superintendent of public instruction ""to ensure
that a durable, permanent copy of the Ten Commandments ... be displayed on a
wall in each public elementary and secondary school classroom in the
Commonwealth'"), discussed infra text accompanying notes 284288.

n7. See Wallace v. Jaffree, 472 U.S. 38, 40 n.2 (1985) (invalidating statute
authorizing teachers in public schools to require one minute or less of silence
prior to classes for meditation or voluntary prayer), discussed infra text
accompanying notes 289293.

n8. See Marsh v. Chambers, 463 U.S. 783, 791 (1983) (upholding the
constitutionality of legislative prayer), discussed infra text accompanying
notes 313319.

n9. See infra notes 3653 and accompanying text.

n10. Wallace, 472 U.S. at 70 (O'Connor, J., concurring).

n11. See, e.g., County of Allegheny v. ACLU, 492 U.S. 573, 595 (1989); see also
infra text accompanying notes 251269.

n12. Cf. McGowan v. Maryland, 366 U.S. 420, 576 (1961) (Douglas, J., dissenting)
("Can there be any doubt that Christians, now aligned vigorously in favor of
these [Sunday closing] laws, would be as strongly opposed if they were
prosecuted under a Moslem law that forbade them from engaging in secular
activities on days that violated Moslem scruples?"); Meltzer v. Board of Pub.
Instruction, 577 F.2d 311, 321 (5th Cir. 1978) (Brown, J., dissenting) ("If this
statute had required the inculcation of "Jewish virtue,' or "Moslem virtue,'
[rather than Christian virtue,] we have no doubt that the unconstitutionality of
the statute would be conceded by all."); Kenneth L. Karst, The First Amendment,
the Politics of Religion and the Symbols of Government, 27 Harv. C.R.-C.L. L.
Rev. 503, 520 (1992) (recounting recent commencement at UCLA where Buddhist
priest, attired in appropriate garb, delivered invocation, resulting in many
letters of protest, some equivalent to "enraged screams;" and speculating, with
mild sarcasm, that an invocation by a Presbyterian minister would not have
yielded a similar response).

n13. See, e.g., Lynch v. Donnelly, 465 U.S. 668, 683 (1984) ("display of the
creche is no more an advancement or endorsement of religion than the
Congressional and Executive recognition of the origins of the [Christmas]
Holiday itself as "Christ's Mass,' or the exhibition of literally hundreds of
religious paintings in governmentally supported museums." (emphasis added)); id.
at 69293 (O'Connor, J., concurring):

Display of the creche in this particular physical setting [is] no more an

endorsement of religion than such governmental "acknowledgments" of religion as
legislative prayers ..., government declaration of Thanksgiving as a public
holiday, printing of "In God We Trust" on coins, and opening court sessions with
"God save the United States and this honorable court."

(emphasis added); Murray v. City of Austin, 947 F.2d 147, 15455 (5th Cir. 1991)
(cross in city insignia no more of an endorsement than legislative prayer,
creches, menorahs, religious art in public museums, and the display of Moses
with the Ten Commandments in the Supreme Court building); Cammack v. Waihee, 932
F.2d 765, 782 (9th Cir. 1991) ("It is difficult to imagine that the average
Hawaiian citizen would view Hawaii's inclusion of Good Friday on a list of state
holidays as any more a law establishing a religion than is the current inclusion
of Christmas on the same list." (emphasis added)).

n14. See William Van Alstyne, Trends in the Supreme Court: Mr. Jefferson's
Crumbling Wall - A Comment on Lynch v. Donnelly, 1984 Duke L.J. 770, 783 & nn.
4445.

n15. For instance, in Marsh v. Chambers, the legislative prayer case, the
Supreme Court ignored the Court's traditional Establishment Clause jurisprudence
as if it did not exist, opting instead for a syllogistic approach similar to the
one described above. 463 U.S. 783, 791 (1983) ("legislative prayer presents no
more potential for establishment than the provision of school transportation,
beneficial grants for higher education, or tax exemptions for religious
organizations" (emphasis added) (citations omitted)); see also Rodney J.
Blackman, Showing the Fly the Way Out of the Fly-Bottle: Making Sense of the
First Amendment Religion Clauses, 42 U. Kan. L. Rev. 285, 335 n.144 (1994)
(criticizing the weakness of an historical approach based on reasoning that
"because "this' already has been allowed, there is no reason not to allow
"that'"); Ira C. Lupu, Keeping the Faith: Religion, Equality and Speech in the
U.S. Constitution, 18 Conn. L. Rev. 739, 755 n.4 (1986) ("In the absence of a
baseline principle, "more' and "worse' are meaningless concepts of measure.");
E. Gregory Wallace, When Government Speaks Religiously, 21 Fla. St. U. L. Rev.
1183, 121314 (1994) ("there is no substantive baseline that reflects
constitutional values; rather, everything is relative to what government has
traditionally done"); Yehudah Mirsky, Note, Civil Religion and the Establishment
Clause, 95 Yale L.J. 1237, 1245 (1986) (under such test, "the legitimate
functions of government are defined ... simply by what government is already
doing, without any reference to the substantive content and constitutional value
of the activity in question").

n16. See Lemon v. Kurtzman, 403 U.S. 602, 624 (1971) ("In constitutional
adjudication, some steps, which when taken were thought to approach "the verge,'
have become the platform for yet further steps. A certain momentum develops in
constitutional theory and it can be a "downhill thrust' easily set in motion but
difficult to retard or stop."); see also Karst, supra note 12, at 523 ("Each
judicial approval of a de facto establishment adds to the fund of precedents for
the next extension of official support for religion.").

n17. See, e.g., Jones v. Clear Creek Indep. Sch. Dist., 930 F.2d 416, 417 (5th
Cir. 1991); Adler v. Duval County Sch. Bd., 851 F. Supp. 446, 448 (M.D. Fla.
1994). But see, e.g., Lee v. Weisman, 505 U.S. 577, 586 (1992) (middle school);
ACLU v. Black Horse Pike Reg'l Bd. of Educ., 84 F.3d 1471, 1474 (3d Cir. 1996);
Harris v. Joint Sch. Dist. No. 241, 41 F.3d 447, 457, 458 (9th Cir. 1994).

n18. See, e.g., Tanford v. Brand, 932 F. Supp. 1139, 1139 (S.D. Ind. 1996);
Chaudhuri v. Tennessee, 886 F. Supp. 1374, 1388 (M.D. Tenn. 1995); see also
Tanford v. Brand, 883 F. Supp. 1231, 1234 (S.D. Ind. 1995) (denying preliminary
injunction).

n19. See, e.g., Lynch v. Donnelly, 465 U.S. 668, 687 (1984); Doe v. City of
Clawson, 915 F.2d 244, 249 (6th Cir. 1990). But see, e.g., County of Allegheny
v. ACLU, 492 U.S. 573, 579 (1989); Smith v. County of Albermarle, Va., 895 F.2d
953, 960 (4th Cir. 1990).

n20. See, e.g., Hewitt v. Joyner, 940 F.2d 1561, 1563 (9th Cir. 1991) (Christian
statues); ACLU v. Wilkinson, 895 F.2d 1098, 1100 (6th Cir. 1990) (biblical
stable scene on grounds of state capitol); Anderson v. Salt Lake City Corp., 475
F.2d 29, 34 (10th Cir. 1973) (stone monolith inscribed with religious symbols
located in front of courthouse); Carpenter v. City and County of San Francisco,
803 F. Supp. 337, 346, 351 (N.D. Cal. 1992) (cross). But see, e.g., Separation
of Church and State Comm. v. Eugene, No. 93-35094, 1996 U.S. App. LEXIS 20990,
at *6*7 (9th Cir. Aug. 20, 1996) (per curiam) (cross); Gonzales v. North
Township, 4 F.3d 1412, 1423 (7th Cir. 1993) (same); Ellis v. City of La Mesa,
990 F.2d 1518, 1520 (9th Cir. 1993) (crosses); Kaplan v. City of Burlington, 891
F.2d 1024, 1025 (2d Cir. 1989) (menorah).

n21. See, e.g., Murray v. City of Austin, 947 F.2d 147, 15658 (5th Cir. 1991)
(cross); Foremaster v. City of St. George, 655 F. Supp. 844, 84852 (D. Utah
1987) (Mormon temple), rev'd, 882 F.2d 1485 (10th Cir. 1989) (reversed on
factual grounds). But see, e.g., Robinson v. City of Edmond, 68 F.3d 1226,
123233 (10th Cir. 1995) (cross); Ellis v. City of La Mesa, 990 F.2d 1518 (9th
Cir. 1993) (same); Harris v. City of Zion, 927 F.2d 1401, 141115 (7th Cir. 1991)
(same).

n22. See, e.g., Cammack v. Waihee, 932 F.2d 765, 77381 (9th Cir. 1991). But see,
e.g., Metzl v. Leininger, 57 F.3d 618, 62223 (7th Cir. 1995) (Good Friday as a
school holiday); Bonham v. District of Columbia Library Admin., 989 F.2d 1242
(D.C. Cir. 1993) (closing of public library on Easter); Mandel v. Hodges, 127
Cal. Rptr. 244, 25356 (Cal. Ct. App. 1976) (three-hour leave on Good Friday for
all state employees to attend church); Griswold Inn, Inc. v. State, 441 A.2d 16,
2022 (Conn. 1981) (prohibition of liquor sales on Good Friday).

n23. See, e.g., Florey v. Sioux Falls Sch. Dist., 619 F.2d 1311 (8th Cir. 1980)
(singing of religious Christmas carols in public schools); Doe v. Louisiana
Supreme Court, Civ. A. No. 91-1635, 1992 WL 373566, at *6*7 (E.D. La. Dec. 8,
1992) (use of "in the year of our Lord" to date public documents); Society of
Separationists, Inc. v. Clements, 677 F. Supp. 509, 51213 (W.D. Tex. 1988)
(singing of religious Christmas carols during holiday celebration held in state
capital building).

n24. See Lupu, supra note 15, at 755 ("Reasonable people may, of course,
disagree concerning how steep and slick the slope is likely to be. But the
recent direction of establishment clause decisions suggest that those who tell
us how far we are from a national church are surely willing to bring us
closer.").

n25. See, e.g., Wallace v. Jaffree, 472 U.S. 38, 70 (1985) (O'Connor, J.,
concurring).

n26. See, e.g., Lynch v. Donnelly, 465 U.S. 668, 681 (1984); cf. Steven D.
Smith, Separation and the "Secular": Reconstructing the Disestablishment
Decision, 67 Tex. L. Rev. 955, 1003 (1989):

When the Court wishes to invalidate a law or practice, it implicitly adopts an

exclusionary approach; finding religious content or inspiration, the Court
pronounces the law or practice unconstitutional. When the Court wishes to uphold
a law or practice, it adopts an inclusive or positive conception of the secular;
almost any measure enacted by a state or national legislature will survive that
test.

n27. See Lundberg v. West Monona Community Sch. Dist., 731 F. Supp. 331, 345
(N.D. Iowa 1989) ("Cases such as Marsh and Lynch, in which the Supreme Court
creates exceptions based on "unique histories,' demonstrate [] the inherent
problem for courts to rule consistently and predictably.... Such "exceptions'
may some day grow to the point of swallowing the rule."); Laurence H. Tribe,
American Constitutional Law 1292 (2d ed. 1988) ("The "any-more-than' approach
could, by selectively citing precedents, move establishment clause doctrine
toward ever-larger official endorsements as, in future applications, programs
are compared to Lynch. Thus might the well-known tyranny of small decisions
eventually eclipse a core purpose of the establishment clause.") (footnote
omitted).

n28. See, e.g., Leonard W. Levy, The Establishment Clause: Religion and the
First Amendment 127, 17677, 18485 (1986) (although recognizing their technical
unconstitutionality, arguing that "the incantation "God save the United States
and this honorable Court' and the motto "In God We Trust' and its relatives are
of trifling significance," and labeling legal challenges to them "silly suits;"
arguing that one should ""let sleeping dogmas lie'" (emphasis added)); Tribe,
supra note 27, at 129596 ("even from the minority perspective, some such
practices should be deemed to have outgrown their religious births"); Daniel O.
Conkle, Toward a General Theory of the Establishment Clause, 82 Nw. U. L. Rev.
1113, 1185 & n.283 (1988) (arguing that "the long-sanctioned "official'
references to God and religion in our national motto and in Presidential
proclamations should not be declared unconstitutional," although suggesting that
reference to God in the Pledge "is considerably more problematic"); Karst, supra
note 12, at 52021 (finding "safe, under any Establishment Clause "test,'"
observance of Christmas and Thanksgiving, "In God We Trust" on currency, and
"under God" in the Pledge of Allegiance); William P. Marshall, "We Know It When
We See It": The Supreme Court and Establishment, 59 S. Cal. L. Rev. 495, 509
(1986) (suggesting that the Establishment Clause leaves untouched vestiges of
the nation's "de facto establishment" of religion, such as the Thanksgiving and
Christmas holidays and mottos and emblems containing religious references);
Kathleen M. Sullivan, Religion and Liberal Democracy, 59 U. Chi. L. Rev. 195,
207 n.59 (1992) (arguing that "we need not melt down the national currency to
get rid of "In God We Trust'" since it is at most a de minimis endorsement,
although suggesting that use of "under God" in the Pledge of Allegiance "is a
closer question"); Andrew Rotstein, Note, Good Faith? Religious-Secular
Parallelism and the Establishment Clause, 93 Colum. L. Rev. 1763, 177273 (1993)
(describing references to the deity in the national motto, the judicial
invocation, and the Pledge as "hollow gestures - an accepted part of civic life,
with only a literary or historical connection to theology as such"). Professor
Arnold Loewy is a notable exception. Shortly after Justice O'Connor's
concurrence in Lynch first articulated the endorsement test, see infra notes
251254 and accompanying text, Loewy thoroughly analyzed the invocation "God save
the United States and this Honorable Court" and the addition of "under God" to
the Pledge of Allegiance and concluded that neither could survive scrutiny under
that test. See Arnold H. Loewy, Rethinking Government Neutrality Towards
Religion Under the Establishment Clause: The Untapped Potential of Justice
O'Connor's Insight, 64 N.C. L. Rev. 1049, 1055-60 (1986). Commentators agreeing
with Loewy have confined their analysis of ceremonial deism to subsidiary points
or footnotes. See Jesse H. Choper, The Free Exercise Clause: A Structural
Overview and an Appraisal of Recent Developments, 27 Wm. & Mary L. Rev. 943, 947
(1986) (suggesting that references to God on coins and currency, in Thanksgiving
Day proclamations, and in legislative prayer must be held invalid when evaluated
under the Court's long-standing Establishment Clause doctrine); Douglas Laycock,
Equal Access and Moments of Silence: The Equal Status of Religious Speech by
Private Speakers, 81 Nw. U. L. Rev. 1, 8 (1986) (arguing that the Establishment
Clause forbids government from putting "In God We Trust" on coins and from using
the traditional judicial invocation, "God save the United States and this
Honorable Court"); Lupu, supra note 15, at 746 n.30 (arguing that references to
God on coins, in the Pledge of Allegiance, or in ceremonies at government
functions are unconstitutional because they "are inevitably discriminatory in
both intent and effect [as] they are successfully designed to conjure an image
of a transcendent, Judeo-Christian God"); Developments in the Law - Religion and
the State, 100 Harv. L. Rev. 1606, 1653 n.61 (1987) (questioning the
constitutionality of various forms of ceremonial deism) [hereinafter
Developments].

n29. Arthur E. Sutherland, Book Review, 40 Ind. L.J. 83, 86 (1964) (reviewing
Wilber G. Katz, Religion and American Constitutions (1963)).

n30. Id.

n31. See 1 Anson Phelps Stokes, Church and State in the United States 26467
(1950).

n32. See id. at 266.

n33. See id. at 267. Deism had "points of contact" with Rousseau's "civil
religion," a concept addressed infra notes 5671 and accompanying text. See id.

n34. See id. at 31824.

n35. Thomas Paine, Of the Religion of Deism Compared with the Christian
Religion, and the Superiority of the Former over the Latter, 1 Prospect 235, 235
(1804), reprinted in Norman Cousins, "In God We Trust": The Religious Beliefs
and Ideas of the American Founding Fathers 430 (1958).

n36. 465 U.S. 668 (1984).

n37. 492 U.S. 573 (1989).

n38. Lynch, 465 U.S. at 716 (Brennan, J., dissenting) (footnote omitted).

n39. Id. at 717 (Brennan, J., dissenting).

n40. Id. (Brennan, J., dissenting).

n41. 492 U.S. at 596 n.46 (Brennan, J., dissenting) (quoting Lynch, 465 U.S. at
693 (O'Connor, J., concurring)); id. at 603. The plurality suggested, however,
that the National Day of Prayer might be distinguishable from these other
practices inasmuch as that holiday exhorts Americans to pray. See id. at 603
n.52; see also infra notes 192208, 409412 and accompanying text (discussing
establishment of National Day of Prayer).

n42. Allegheny, 492 U.S. at 596 n.46 (quoting Lynch, 465 U.S. at 693 (O'Connor,
J., concurring)).

n43. Id. at 63031 (O'Connor, J., concurring). Lower federal courts have referred
to "ceremonial deism" as well. For instance, the Fourth Circuit has observed
that "ceremonial deism" consists of brief patriotic or ceremonial references to
God, devoid of theological impact, which acknowledge the historical place
occupied by religion in American society. The court held that, although the
national motto and the Pledge of Allegiance meet this description, outright
prayers by judges prior to court proceedings do not. See North Carolina Civil
Liberties Union v. Constangy, 947 F.2d 1145, 1151 (4th Cir. 1991). The Fifth
Circuit has referred to "ceremonial deism" as practices which solemnize public
occasions and included high school graduation prayers within its ambit. See
Jones v. Clear Creek Indep. Sch. Dist., 930 F.2d 416, 420 (5th Cir. 1991); see
also Griffith v. Teran, 794 F. Supp. 1054, 1059 (D. Kan. 1992) (referring to
"ceremonial deism" as "evoking a sentiment and spirit that ... cannot adequately
be captured by nonreligious phrases," and finding graduation prayer to be a
permissible form of ceremonial deism); Doe v. Louisiana Supreme Court, Civ. A.
No. 91-1635, 1992 WL 373566, at *7 (E.D. La. Dec. 8, 1992) (noting "ceremonial
deism" consists of permissible reference to America's religious heritage, and
finding reference to "in the year of our Lord" allowable as such).

n44. See Illinois ex rel. McCollum v. Board of Educ., 333 U.S. 203, 25355 (1948)
(Reed, J., dissenting).

n45. 343 U.S. 306, 31213 (1952).

n46. Id. at 313.

n47. 370 U.S. 421, 435 n.21 (1962) (referring to recitation of historical
documents and singing of anthems containing references to the deity).

n48. 374 U.S. 203, 303 (1963) (Brennan, J., concurring).

n49. Id. at 304 (Brennan, J. concurring).

n50. 465 U.S. at 674.

n51. Id. at 675.

n52. See id. at 67479 & nn. 25. Chief Justice Burger also included religious
paintings in this group. Religious paintings in art museums, however, do not fit
within the rubric of ceremonial deism because they do not involve a governmental
embrace of religion. Rather, they involve a governmental embrace of art, which
only incidentally embodies a religious theme.

n53. See, e.g., Lee v. Weisman, 505 U.S. 577, 63335 (1992) (Scalia, J.,
dissenting) (recounting historical interactions between government and religion,
including President Washington's oath of office on the Bible, supplication to
God in inaugural addresses, the Thanksgiving holiday, legislative prayer, and
the judicial invocation); County of Allegheny v. ACLU, 492 U.S. 573, 67174 & n.9
(1989) (Kennedy, J., dissenting) (reviewing litany of practices constituting
ceremonial deism including Thanksgiving holiday, inaugural prayers, the judicial
invocation, the Congressional prayer room, the National Day of Prayer, the
Pledge of Allegiance, and the national motto "In God We Trust"); Wallace v.
Jaffree, 472 U.S. 38, 8485 (1985) (Burger, J., dissenting) (noting inconsistency
between invalidation of moment of silence law and acceptance of practices such
as legislative prayer, the judicial invocation, the Congressional prayer room,
and the Pledge of Allegiance); id. at 10003 (Rehnquist, J., dissenting)
(chronicling history of governmental interaction with religion, including
legislative prayer and Thanksgiving proclamations); Marsh v. Chambers, 463 U.S.
783, 818 (1983) (Brennan, J., dissenting) (pondering the constitutional
significance of the judicial invocation, the national motto "In God We Trust,"
and the Pledge of Allegiance).

n54. This definition does not require that a practice be nonsectarian before it
may be classified as ceremonial deism. As will be demonstrated in Part II, both
explicitly Christian practices and practices most would consider nonsectarian
have been utilized by the government in similar ways during governmental
functions or ceremonies, in the form of patriotic expressions, or in association
with holiday observances. Moreover, as will be demonstrated in Part III, the
nonsectarian nature of such practices does not save them from constitutional
invalidity. See infra note 270 and accompanying text.

n55. See supra notes 1723.

n56. See Griffith v. Teran, 794 F. Supp. 1054, 1059 (D. Kan. 1992) (nonsectarian
high school commencement prayers permissible as forms of civil religion); cf.
Stein v. Plainwell Community Sch., 822 F.2d 1406, 1409 (6th Cir. 1987)
(nonsectarian high school commencement prayers would be permissible as forms of
civil religion, but the prayers at issue were not because they contained
explicit references to Jesus Christ).

n57. Robert N. Bellah, Beyond Belief: Essays on Religion in A Post-Traditional

World (1970).

n58. Id. at 171.

n59. Id. at 172 (citing Jean-Jacques Rousseau, The Social Contract, Ch. 8, Bk.
4).

n60. See id. at 171.

n61. Id. at 175.

n62. Id. at 17576.

n63. See id. at 183.

n64. Sanford Levinson, Constitutional Faith (1988).

n65. For other works on the subject of civil religion, see generally Robert N.
Bellah & Phillip E. Hammond, Varieties of Civil Religion (1980); Gail Gehrig,
American Civil Religion: An Assessment (1979). For additional analysis of civil
religion, see, e.g., W. Lance Bennett, Imitation, Ambiguity, and Drama in
Political Life: Civil Religion and the Dilemmas of Public Morality, 41 J. Pol.
106 (1979); Thomas C. Grey, The Constitution as Scripture, 37 Stan. L. Rev. 1
(1984).

n66. Levinson, supra note 64, at 10.

n67. See id. at 1112.

n68. See id. at 55 (citing Thomas Grey, The Constitution as Scripture, 37 Stan.
L. Rev. 1, 18 (1984)).

n69. See infra Part III.A.

n70. Justice Kennedy, speaking for the majority in Lee v. Weisman, 505 U.S. 577,
58990 (1992), reasoned that

though the First Amendment does not allow the government to stifle prayers which
aspire to the[] ends [of civil religion], neither does it permit the government
to undertake that task for itself.... The suggestion that government may
establish an official or civic religion as a means of avoiding the establishment
of a religion with more specific creeds strikes us as a contradiction that
cannot be accepted.

See Tribe, supra note 27, at 1296 n.85 ("Bellah's description is based on
tradition and practice rather than on any independent normative vision.");
Michael Stokes Paulsen, Lemon is Dead, 43 Case W. Res. L. Rev. 795, 829 (1993)
("An established "civil religion' is still an established religion."); James J.
Dean, Comment, Ceremonial Invocations at Public High School Events and the
Establishment Clause, 16 Fla. St. U. L. Rev. 1001, 1020 (1989) ("Governmental
practices expressive of civil religion may violate the establishment clause by
endorsing religion and disapproving of nonreligion. Thus, even if courts could
agree that a specific ceremonial invocation did not go beyond the American civil
religion, this would not necessarily resolve the establishment clause issue.").

n71. Two other works on civil religion deserve specific mention. The first,
Yehudah Mirsky's Civil Religion and the Establishment Clause, supra note 15,
tracks much of Bellah's language in an attempt to turn his version of civil
religion into a useful Establishment Clause construct. Mirsky recognizes that
civil religion "has a somewhat different flavor" than ceremonial deism. Id. at
1237 n.2. Unlike Bellah, she draws a sharp distinction between traditional and
civil religion, suggesting that the former is sacral, whereas the latter is not.
See id. at 124951. She acknowledges, nevertheless, that in order to fill the
vacuum left in the wake of disestablishment, civil religion grew up around the
ideas and forms of Christianity (particularly Puritanism) and Judaism. See id.
at 1251. As examples, she cites the national motto "In God We Trust," Lincoln's
Second Inaugural Address, which was filled with religious imagery, and religious
terminology in the Pledge of Allegiance. See id. at 1253, 1256. She chides the
Supreme Court for "relying more on intuition and a devotion to the status quo
than on reasoned analysis" in Marsh v. Chambers, 463 U.S. 783 (1983)
(legislative prayer) and Lynch v. Donnelly, 465 U.S. 668 (1984) (nativity
scene), Mirsky, supra note 15, at 1246, and suggests that civil religion would
be a more profitable normative tool. See id. at 1247. In her view, neither
legislative prayer nor nativity scenes can be justified as permissible forms of
civil religion, because legislative prayer is sacral and nativity scenes are
meaningful only to some citizens. See id. at 1256.

The second article also tracks Bellah's formulation of civil religion. See
Michael M. Maddigan, Comment, The Establishment Clause, Civil Religion, and the
Public Church, 81 Cal. L. Rev. 293 (1993). However, like Mirsky, Maddigan
departs from Bellah to suggest that "civil religion is not theologically
religious, despite the use of the word "God.' It is mythic, patriotic, and
secular." Id. at 326. From this definition, he easily concludes that the mere
invocation to God, or reference to God as the "protector of the United States,"
does not implicate the Establishment Clause. Id. In Maddigan's view, the Supreme
Court has gone astray in its discussions of ceremonial deism because it has
"failed to recognize that ceremonial deism cases really involve public
acknowledgments of civil religion." Id. at 337. Thus, legislative prayer should
have (and would have) been justified under the civil religion lens. See id. at
338. The commencement invocation and benediction in Lee v. Weisman was a
"classic example of civil religion." Id. at 339. Nativity scenes, however, could
not be justified as civil religion because of their theological symbolism. See
id. at 345. According to Maddigan, the judicial invocation, Thanksgiving, the
National Day of Prayer, the Pledge of Allegiance, the national motto, and
Presidents' references to God "can all be better justified with reference to the
concept of civil religion instead of ceremonial deism." Id. at 346. As this
Article will demonstrate, however, under the Court's prevailing Establishment
Clause jurisprudence, most of these practices are not justified under either
label.

n72. Anson Phelps Stokes & Leo Pfeffer, Church and State in the United States 39
(1964). At the time the First Amendment was ratified in 1791, there were only
1,5002,000 Jews in the nation, out of a population of approximately four million
people. See Morton Borden, Jews, Turks, and Infidels 6 (1984); 1 Bureau of the
Census, U.S. Dep't of Commerce, Historical Statistics of the United States:
Colonial Time to 1970, at 8 (1975). As Jews therefore constituted only about
.05% of the population at this time, over 99% of Americans were Christian.

n73. Thomas J. Curry, The First Freedoms: Church and State in America to the
Passage of the First Amendment 218 (1986). This is not to suggest that
Protestant Christians were homogenous in their views or beliefs. Protestant
Christians in early America were divided into well-defined sects of widely
differing views and beliefs. See Arlin M. Adams & Charles J. Emmerich, A
Heritage of Religious Liberty, 137 U. Pa. L. Rev. 1559, 156268 (1989).

n74. Curry, supra note 73, at 219.

n75. As one scholar noted:

A great many of the early American settlements were formed by dissident

religious minorities fleeing from the Protestant establishments of England,
Ireland, and Scotland. Paradoxically many Europeans who fled to the New World to
escape established religion agreed that Church and State should be combined in
their new settlements. With few exceptions, those who fled religious persecution
were no more tolerant of religious dissenters than [] those from whom they had
fled.

Robert L. Cord, Separation of Church and State: Historical Fact and Current
Fiction 3 (1982).

n76. See 1 Stokes, supra note 31, at 274.

n77. See Adams & Emmerich, supra note 73, at 1582; Stokes & Pfeffer, supra note
72, at 77.

n78. See Curry, supra note 73, at 190.

n79. See McGowan v. Maryland, 366 U.S. 420, 433 (1961). The government's impulse
to enforce the Sabbath continued well into the nineteenth and twentieth
centuries. For example, in 1862, President Lincoln ordered all military
commanders to observe Sunday as a day of rest out of "deference to the best
sentiment of a Christian people ...." See Borden, supra note 72, at 64. Nearly
every state in the union had Sunday Sabbath laws until at least 1961. See
McGowan, 366 U.S. at 435.

n80. McGowan, 366 U.S. at 433 n.10 (quoting 1695 New York Sunday Sabbath law).
n81. See Cord, supra note 75, at 21617.

n82. Torcaso v. Watkins, 367 U.S. 488, 490 (1961). These test oaths existed
despite the new federal Constitution's declaration that "no religious Test shall
ever be required as a Qualification to any Office or public Trust under the
United States." U.S. Const. art. VI, cl.3.

n83. See Stokes & Pfeffer, supra note 72, at 37.

n84. See id.

n85. Id. (quoting 3 Richard Hildreth, The History of the United States of
America 34647 (1877)).

n86. Id. (quoting 3 Hildreth, supra note 85, at 34647).

n87. Id. (quoting 3 Hildreth, supra note 85, at 34647).

n88. See Curry, supra note 73, at 221.

n89. See Stokes & Pfeffer, supra note 72, at 80.

n90. Id. at 72 (quoting 5 Francis Newton Thorpe, The Federal and State
Constitutions: Colonial Charters and Other Organic Laws of the States,
Territories, and Colonies Now or Heretofore Forming the United States of America
38 (1909)).

n91. See id. at 80.

n92. See Torcaso v. Watkins, 367 U.S. 488, 496 (1961), discussed infra notes
383386 and accompanying text.

n93. This point is expanded on at infra text accompanying notes 114116, 130137,
145150, 153, 156161, 164170, 172181, 192196.

n94. The Declaration of Independence para. 32 (U.S. 1776).

n95. The Articles of Confederation para. 33 (U.S. 1781).

n96. See 1 Stokes, supra note 31, at 47075.

n97. See Cord, supra note 75, at 54.

n98. See id. at 141. It was not until 1972 that this requirement was declared
unconstitutional. See Anderson v. Laird, 466 F.2d 283, 305 (D.C. Cir. 1972).

n99. See 1 Stokes, supra note 31, at 494.

n100. See 2 id. at 48.

n101. See id. at 54.

n102. 2 id. at 56 (quoting Horace Mann's 1842 Fourth of July oration).

n103. See id. at 5657; see also Harold J. Berman, Faith and Order: The
Reconciliation of Law and Religion 226 n.9 (1993) (reprinting part of an 1841
lecture by Horace Mann in which he stated that ""as educators ... our great duty
is ... to awaken the faculty of thought in all the children ... to train them up
to the love of God and the love of man; to make the perfect example of Jesus
Christ lovely in their eyes'") (quoting Horace Mann, Lectures on Education 263
(1969)).

n104. See 2 Stokes, supra note 31, at 60.

n105. See id. Such activities included commencement prayers, which apparently
began in Connecticut in 1868. See Lee v. Weisman, 505 U.S. 577, 635 (1992)
(Scalia, J., dissenting). As late as 1946, 38 of the 48 states either required
or permitted Bible reading in the public schools. See Stokes & Pfeffer, supra
note 72, at 372.

n106. Berman, supra note 103, at 227 (emphasis added).

n107. Borden, supra note 72, at 116.

n108. Id. at 126.

n109. Id.

n110. Judefind v. State, 28 A. 405, 40607 (Md. 1894). Apart from litigation over
the Sunday Sabbath, courts interpreting blasphemy laws were also quick to point
out the Christian foundation of their states and the nation. For instance, in
upholding an indictment for blasphemous utterances against Jesus Christ in 1811,
the Chief Justice of New York's highest court observed that "we are a Christian
people, and the morality of the country is deeply ingrafted upon Christianity."
People v. Ruggles, 8 Johns. 290, 295 (N.Y. Sup. Ct. 1811). In 1861, New York's
highest court of equity declared that "Christianity may be conceded to be the
established religion . . . ." Lindenmuller v. People, 33 Barb. Ch. 548, 562
(N.Y. Ch. 1861). The Pennsylvania Supreme Court, in affirming a blasphemy
conviction in 1822, stated that "general Christianity is, and always has been, a
part of the common law of Pennsylvania ...." Updegraph v. Commonwealth, 11 Serg.
& Rawle. 393, 400 (Pa. 1822) (emphasis omitted).

n111. Church of the Holy Trinity v. United States, 143 U.S. 457, 471 (1892)
(emphasis added). The Supreme Court reiterated this same sentiment as late as
1931. See United States v. McIntosh, 283 U.S. 605, 625 (1931) (referring to
Americans as a "Christian people, according to one another the equal right of
religious freedom, and acknowledging with reverence the duty of obedience to the
will of God" (citing Holy Trinity, 143 U.S. at 47071)). A federal district court
reiterated these sentiments as recently as 1986:

The truth is that America's origins are Christian with the result that some of
our fondest traditions are Christian, and that our founding fathers intended and
achieved full religious freedom for all within the context of a Christian nation
in the first amendment as it was adopted, rather than as we have rewritten it.

American Jewish Congress v. City of Chicago, No. 85-C-9471, 1986 WL 20750, at *4

(N.D. Ill. Nov. 5, 1986), rev'd, 827 F.2d 120 (7th Cir. 1987); cf. Alan E.
Brownstein, Harmonizing the Heavenly and Earthly Spheres: The Fragmentation and
Synthesis of Religion, Equality, and Speech in the Constitution, 51 Ohio St.
L.J. 89, 146 (1990) (""this [is] ... a Christian country, in origin, history,
tradition and culture' which, while willing to tolerate minorities "out of
Christian doctrine and ethics,' cannot be expected to give up the prerogatives
of the majority to satisfy the "absolutist' demands of minority group members"
(quoting Harvard Law School Dean Erwin N. Griswold, Absolute is in the Dark: A
Discussion of the Approach of the Supreme Court to Constitutional Questions, 8
Utah L. Rev. 167, 17677 (1963))).

n112. See Marsh v. Chambers, 463 U.S. 783, 787 & n.5 (1983).

n113. See id. at 78889 & n.11.

n114. See 1 Stokes, supra note 31, at 44851.

n115. Curry, supra note 73, at 217.

n116. See Cord, supra note 75, at 2324.

n117. See, e.g., 118 Cong. Rec. 31,793 (1972) ("God of our Lord Jesus Christ, we
thank Thee for blessing and prospering our land .... We look forward to the
coming of our Lord and His kingdom .... In the name of our Lord who died that we
might live. Amen."); 107 Cong. Rec. 10,662 (1961):

O merciful Saviour, inspire us all to outthink, outdo, and outlove Thine enemies
who are ours, and keep us aware of Thy everlasting presence. Free us, Divine
Master, we pray Thee, of earthly fears and anxieties, and help us while facing
our responsibilities to be true and faithful servants of Christ, giving loving
service to our fellow men in His holy name. Amen.

See also 87 Cong. Rec. 10,090 (1941):

O God, who makest us glad with the yearly remembrance of the birth of Thine only
Son, Jesus Christ, at whose coming the angels sang of peace on earth to men of
good will: Help us as again we draw near to His manger-cradle, to see in His
infant face the light of Thine infinite love, and to find in Him the man that we
may yet become.... We ask it in the name of the Babe of Bethlehem, for whom we
long, and in that longing, are sure to find, even Thy Son, our Savior, Jesus
Christ. Amen.

n118. Search of LEXIS, Genfed Library, RECORD file (July 21, 1996); see, e.g.,
141 Cong. Rec. S1129 (daily ed. Jan. 19, 1995) ("We praise You for the way we
see Your power displayed in the weakness of Jesus, Your goodness in His life,
Your justice in the cross."); 140 Cong. Rec. S5207 (daily ed. May 5, 1994) ("We
make this prayer in the name of Jesus Christ because He taught us to pray, and
He has given us such unworthy vessels as we are the right to approach Thy throne
with confidence."); 139 Cong. Rec. S2977 (daily ed. March 17, 1993) ("Help us
heed Jesus' invitation to come to Him when we "labor and are heavy laden.' Help
us to count on His understanding, His love, His forgiveness, His renewal."); 138
Cong. Rec. S5927 (daily ed. May 5, 1992) ("Father God, I offer this prayer in
the name of our Lord and Saviour Jesus Christ whose love, I pray, will fill our
hearts and motivate our actions this and every day."); 138 Cong. Rec. S3171
(daily ed. March 11, 1992) ("Bless Your servants chosen by the people of this
Nation, for Thou knowest them, their needs, their motives, their hopes, and
their fears. Lord Jesus, put Thine arm around them to give them strength, and
speak to them to give them wisdom greater than their own."); 138 Cong. Rec.
S1515 (daily ed. Feb. 18, 1992) ("Our civilization cannot survive unless it is
redeemed spiritually. It can be saved only by becoming permeated with the spirit
of Christ and being made free and happy by the practices which spring from that
spirit.").

n119. See 1 Stokes, supra note 31, at 501.

n120. See id. at 499.

n121. See id. at 506. In addition, in the winter of 186768, the First
Congregational Church was permitted to use the House Chamber for its regular
Sunday services. See id.

n122. See H.R. Con. Res. 60, 83d Cong., 99 Cong. Rec. 9073 (1953) (enacted).

n123. 99 Cong. Rec. 9073 (1953) (statement of Rep. Hays).

n124. Id. at 9075 (1953) (statement of Rep. Scrivner).

n125. Id. at A4562 (1953) (statement of Hon. Katharine St. George).

n126. See Stokes & Pfeffer, supra note 72, at 571.

n127. See id.

n128. See Allegheny County v. ACLU, 492 U.S. 573, 672 (1988) (citing L. Aikman,
We the People: The Story of the United States Capitol 122 (1978)).

n129. See 1 Stokes, supra note 31, at 468; Stokes & Pfeffer, supra note 72, at
571; Maddigan, supra note 71, at 324 (translation of Annuit Coeptis). The eye
and motto of the reverse side of the Seal were intended to ""allude to the many
signal interpositions of providence in favour of the American cause.'" 1 Stokes,
supra note 31, at 468 (quoting Gaillard Hunt, History of the Seal of the United
States 42 (1909)). The seal was adopted in 1782. See id. It also appears on the
reverse side of the dollar bill. See infra note 357 for Establishment Clause
analysis of the Great Seal.

Some states have similar legislative prayer rooms. Indiana was the first to
establish one in 1962. It was "set aside for the purpose of providing a place
where those who bear the heavy responsibility of government may go and commune
with their Maker ...." Governor Edgar D. Whitcomb, dedication of the Indiana
Chapel on the fourth floor of the capitol building, May 22, 1970 (excerpt
available on card distributed during memorials) (on file with the Columbia Law
Review). That chapel is used not only by legislators, but by Indiana citizens
working in or near the capitol to participate in organized worship services
every Thursday during lunchtime. See State House Chapel Service Schedule (June
1995) (on file with the Columbia Law Review). In 1985, the Illinois legislature
adopted legislation to create ""a quiet and special place, where its members may
seek God, the comfort of His presence, the light of His guidance, and the
strength of His love.'" Van Zandt v. Thompson, 839 F.2d 1215, 122526 (7th Cir.
1988) (quoting text of H.R. 408, 84th Leg., 1st Sess. (Ill. 1985)) (litigation
over Illinois's prayer room).

n130. See Martin Jay Medhurst, "God Bless the President": The Rhetoric of
Inaugural Prayer 61 (1980) (unpublished Ph.D. dissertation, Pennsylvania State
University) (on file with the Pennsylvania State University Library).

n131. See id. at 61.

n132. See id. at 58.

n133. Id. at 5859 (quoting 1 Joseph Gales, The Debates and Proceedings in the
Congress of the United States 25 (1834)).

n134. See id. at 6061. Throughout the debate, in neither house was separation of
church and state an issue. See id.

n135. See id. at 62.

n136. See id. at 63.

n137. From President Washington's second inauguration in 1793 until President

Franklin Roosevelt's second in 1937, the Senate chaplain delivered the inaugural
prayers in the Senate chambers as a part of the administration of the oath of
office to the Vice President. These prayers were technically not part of the
"inaugural ceremony" of the President, which typically took place outside of the
Capitol following the Senate proceedings. See id. at 30 n.3.

n138. See 139 Cong. Rec. S55 (daily ed. Jan. 20, 1993) (prayer for President
Clinton and Vice President Gore "in the name of the One who was called Wonderful
Counselor, the mighty God, the everlasting Father, and the Prince of Peace");
135 Cong. Rec. S67 (daily ed. Jan. 20, 1989) (prayer at George Bush's
inauguration: "in the name of the Father, the Son, and the Holy Spirit"); 131
Cong. Rec. 631 (1985) (asking that the President "receive, first, the peace of
Christ"); 127 Cong. Rec. 541 (1981) (calling on the "Lord of lords and King of
kings, even Jesus Christ" to help us "stand proudly as American citizens"); 123
Cong. Rec. 1862 (1977) (praying that we "build a nation here on Earth that in
its manner of life anticipates Thine everlasting kingdom in heaven.... in the
name of Jesus Christ, Thy Son and our Savior"); 119 Cong. Rec. 1659 (1973)
(referring to "the image, the conscience and the soul of man, for whom Thou hast
shed Thy blood upon the cross"); 115 Cong. Rec. 1290 (1969) (prayer by Rev.
Billy Graham asking that President Nixon "have the presence and the power of Thy
Son" and praying "in the name of the Prince of Peace who shed His blood on the
cross that men might have eternal life"); 111 Cong. Rec. 986 (1965) ("We ask
this in the name of the Father and of the Son and of the Holy Ghost, the
life-giving Trinity, for the benefit of our Nation and all nations believing or
aspiring for freedom, justice, dignity, and peace."); 107 Cong. Rec. 1011 (1961)
(Cardinal Cushing and Archbishop Iakovos each began their prayer for John F.
Kennedy by reciting: "In the name of the Father, and of the Son, and of the Holy
Ghost. Amen."); 103 Cong. Rec. 805 (1957) ("Grant to our President and our Vice
President Thy precious blessings of grace, vision, and judgment, in Thy name and
for the sake of Thy dear Son, Jesus Christ our Lord."); 99 Cong. Rec. 450 (1953)
(calling on the Father, the Son, and the Holy Ghost to "renew Thy gifts in the
minds and hearts of those who, today, are entrusted with the august office of
governing our beloved country"); 95 Cong. Rec. 476 (1949) ("Bestow upon us, Our
Father, the happiness which is reserved for that nation whose God is the Lord.
Through Jesus Christ, Our Redeemer, we pray."); 91 Cong. Rec. 365 (1945) (asking
God to bless the man that has been reinaugurated, "through Christ, our Lord");
87 Cong. Rec. 188 (1941) ("We ask it in the name of Him who is the Prince of
Peace, Jesus Christ, Thy Son, our Lord."); 81 Cong. Rec. 318 (1937) (calling on
God to "bless abundantly our Chief Magistrate," Franklin Delano Roosevelt,
"through Christ, our Lord").

n139. See, e.g., 131 Cong. Rec. 630 (1985) (invocation beginning with the Lord's
Prayer); 115 Cong. Rec. 1289 (1969) (same); 25 Cong. Rec. 1 (1893) (same); 21
Cong. Rec. 1 (1889) (invocation concluding with the Lord's Prayer).

n140. See School Dist. of Abington Township v. Schempp, 374 U.S. 203, 205
(1963), discussed infra text accompanying notes 307312.

n141. See, e.g., 135 Cong. Rec. S67 (daily ed. Jan. 20, 1989) (asking everyone
to rise and "shall we pray?"); 131 Cong. Rec. 630 (1985) ("Please join me in
saying the words our Lord [Jesus Christ] taught us."); 127 Cong. Rec. 541 (1981)
("Please bow with me in this moment of solemn dedication and prayer."); 119
Cong. Rec. 1658 (1973) (same); 115 Cong. Rec. 1289 (1969) ("Let us pray.").

n142. 139 Cong. Rec. S55 (daily ed. Jan. 20, 1993) (statement of Sen. Ford)
(emphasis added).

n143. Id. (statement of Rev. Graham).

n144. Id. at S58 (quoting Rev. Graham).

n145. See Bellah, supra note 57, at 175; 101st Congress, Inaugural Addresses of
the Presidents of the United States, S. Doc. 101-10, passim (1989) [hereinafter
Inaugural Addresses]; infra text accompanying notes 150152.

n146. George Washington, First Inaugural Address in the City of New York (Apr.
30, 1789), reprinted in Inaugural Addresses, supra note 145 at 2.

n147. Adams & Emmerich, supra note 73, at 1588 (quoting President Washington).

n148. Thomas Jefferson, First Inaugural Address in [sic.] Washington, D.C. (Mar.
4, 1801), reprinted in Inaugural Addresses, supra note 145, at 17 (1989).

n149. Thomas Jefferson, Second Inaugural Address (Mar. 4, 1805), reprinted in

Inaugural Addresses, supra note 145, at 23.

n150. James Madison, First Inaugural Address (Mar. 4, 1809), reprinted in

Inaugural Addresses, supra note 145, at 28.

n151. See 99 Cong. Rec. 451 (1953) (asking audience to "bow your heads" for "a
little private prayer of my own" (statement of President Eisenhower)); 131 Cong.
Rec. S372 (daily ed. Jan. 21, 1985) ("I wonder if we could all join in a moment
of silent prayer." (statement of President Reagan)); 135 Cong. Rec. S68 (daily
ed. Jan. 20, 1989) ("My first act as President is a prayer. I ask you to bow
your heads." (statement of President Bush)).

n152. 139 Cong. Rec. S57 (daily ed. Jan. 20, 1993) (statement of President
Clinton).

n153. See Gerald W. Johnson, The Supreme Court 20 (1962); Loewy, supra note 28,
at 1056.

n154. See 1 Charles Warren, The Supreme Court in the United States History 469
(1932).

n155. See Jones v. Clear Creek Indep. Sch. Dist., 930 F.2d 416, 421 (5th Cir.
1991) (federal courts in general); Stein v. Plainwell Community Sch., 822 F.2d
1406, 1416 (6th Cir. 1987) (same). One of my duties as a law clerk to a federal
district judge from 199092 was to recite this invocation at each new session of
court.

n156. See Stokes & Pfeffer, supra note 72, at 489.

n157. Richard Whitcombe, An Enquiry into Some of the Rules of Evidence Relating
to the Incompetency of Witnesses 3839 (1824).

n158. See U.S. Const. art. II, 1, cl. 8 (presidential oath); U.S. Const. art.
VI, cl. 3 (federal officers). These provisions do, however, require Presidents
to "swear (or affirm)" the specified oath and state that officers "shall be
bound by oath or affirmation," the former in each instance implying appeal to
the divinity. Id.; U.S. Const. art II, 1, cl. 8.
n159. Carl H. Esbeck, A Restatement of the Supreme Court's Law of Religious
Freedom: Coherence, Conflict, or Chaos?, 70 Notre Dame L. Rev. 581, 604 n.83
(1995) (noting that the practice of taking the presidential oath of office with
the added "so help me God" was started by George Washington).

n160. Medhurst, supra note 130, at 62.

n161. See id.

n162. See 83 Cong. Rec. 316 (1937); 87 Cong. Rec. 189 (1941); 91 Cong. Rec. 364
(1945); 95 Cong. Rec. 477 (1949); 99 Cong. Rec. 451 (1953); 103 Cong. Rec. 805
(1957); 107 Cong. Rec. 1012 (1961); 111 Cong. Rec. 985 (1965); 115 Cong. Rec.
1290 (1969); 119 Cong. Rec. 1659 (1973); 123 Cong. Rec. 1862 (1977); 127 Cong.
Rec. 541 (1981); 131 Cong. Rec. 631 (1985); 135 Cong. Rec. S68 (daily ed. Jan.
20, 1989); 139 Cong. Rec. S56 (daily ed. Jan. 20, 1993).

n163. See 139 Cong. Rec. S5556 (daily ed. Jan. 20, 1993) (chronicling President
Clinton and Vice President Gore swearing their oaths).

n164. See Stokes & Pfeffer, supra note 72, at 489.

n165. Lady Lisle's Trial, 11 How. St. Tr. 298, 325 (1685), quoted in 6 John H.
Wigmore, Evidence in Trials at Common Law 1816, at 383 (James J. Chadbourne ed.,
1976).

n166. Indeed, President Washington emphasized the religious nature of the oath
in his farewell address: ""Let it simply be asked where is the security for
property, for reputation, for life, if the sense of religious obligation desert
the oaths, which are the instruments of investigation in Courts of Justice?'"
Note, A Reconsideration of the Sworn Testimony Requirement: Securing Truth in
the Twentieth Century, 75 Mich. L. Rev. 1681, 1686 n.23 (1977) (citing V.
Paltsits, Washington's Farewell Address 151 (1935)). An early American court
description of the purpose of the oath follows:

The purpose of the oath is not to call the attention of God to the witness, but
the attention of the witness to God; not to call upon him to punish the
false-swearer, but on the witness to remember that He will assuredly do so. By
thus laying hold of the conscience of the witness, and appealing to his sense of
accountability, the law best insures the utterance of truth.

Clinton v. State, 33 Ohio St. 27, 33 (1877).

n167. See Stokes & Pfeffer, supra note 72, at 489.

n168. Borden, supra note 72, at 114; see also O'Reilly v. People, 86 N.Y. 154,
15758 (1881):

Some form of an oath has always been required, ... and the sanctions of religion
add their solemn and binding force to the act.... While these sanctions have
grown elastic, and gradually accommodated themselves to differences of creed,
and varieties of beliefs, ... yet through all changes and under all forms the
religious element has not been utterly destroyed.

(citation omitted) (emphasis added).

n169. Stokes & Pfeffer, supra note 72, at 489.

n170. See id. at 490. It is interesting to note that in 1901, the United States
Supreme Court upheld a federal statute requiring that the testimony of Chinese
witnesses, in some cases, be corroborated by white men due to ""loose notions
entertained by [Chinese] witnesses of the obligation of an oath.'" Li Sing v.
United States, 180 U.S. 486, 494 (1901) (quoting Chae Chan Ping v. United
States, 130 U.S. 581, 598 (1889)) (citation omitted).

n171. See Federal Judicial Center, Forms of Oaths for Use in the United States
District Courts 2 (1976); United States District Court for the Eastern District
of North Carolina forms (on file with the Columbia Law Review) [hereinafter
E.D.N.C. Oaths]. The religious purpose of the oath is still manifest. See
Society of Separationists v. Herman, 939 F.2d 1207, 1221 (5th Cir. 1991)
(Garwood, J., dissenting) (asserting that the Constitution recognizes an oath,
unlike an affirmation, to be a religious test); Lackey v. Mesa Petroleum Co.,
559 P.2d. 1192, 1193 (N.M. Ct. App. 1976) ("An oath is an appeal by a person to
God, to witness the truth of what he declares."); 6 Wigmore, supra note 165,
1816, at 382 (recognizing that the purpose of the oath is to remind a witness
"strongly of the divine punishment somewhere in store for false swearing").

n172. U.S. Const. signature page.

n173. See, e.g., Doe v. Louisiana Supreme Court, Civ. A. No. 91-1635, 1992 WL
373566, at *5 (E.D. La. Dec. 8, 1992) (Louisiana law licenses and notarial
commissions); Proclamation No. 6802, 3 C.F.R. 4647 (1995) (presidential
proclamation signed "in the year of Our Lord"). I must confess that my interest
in the topic of this Article was generated by the reference to "in the year of
our Lord" (but not mine) on the two diplomas I received from the University of
North Carolina.

n174. See 1 Stokes, supra note 31, at 486.

n175. See id. at 45154.

n176. Id. at 452.

n177. Id. Assorted references were made in these proclamations to "Jesus Christ"
and "the Holy Ghost." See id. at 45253.

n178. Cord, supra note 75, at 154 (quoting resolution).

n179. See 1 Stokes, supra note 31, at 48788. President Washington also
proclaimed three days of "thanksgiving and prayer" during his second term. Id.
at 488.

n180. 12 The Writings of Washington 120 (Jared Sparks ed., n.p., Tappan and
Dennet 1837), reprinted in 1 James D. Richardson, A Compilation of the Messages
and Papers of the Presidents 64 (1911).

n181. See Wallace v. Jaffree, 472 U.S. 38, 103 (1985) (Rehnquist, J.,
dissenting). Thomas Jefferson, who believed that ""fasting and prayer are
religious exercises'" and that the Constitution left such exercises in the hands
of religious societies, not the federal government, did not issue a Thanksgiving
proclamation. Id. (quoting 11 Writings of Thomas Jefferson 429 (A. Lipscomb ed.,
1904)).

n182. See County of Allegheny v. ACLU, 492 U.S. 573, 671 (1989) (Kennedy, J.,
dissenting); Lynch v. Donnelly, 465 U.S. 668, 67576 nn.23 (1984) (citing
proclamations of Presidents Franklin D. Roosevelt, Kennedy, Johnson, Nixon,
Ford, Carter, and Reagan).

n183. Proclamation No. 2629, 3 C.F.R. 38 (1944).

n184. Proclamation No. 6751, 3 C.F.R. 13536 (1994).

n185. See Act of June 28, 1870, ch. 167, 16 Stat. 168; J. Res. of Jan. 6, 1885,
no. 5, 23 Stat. 516.

n186. See Act of Dec. 26, 1941, ch. 631, Pub. L. No. 379, 55 Stat. 862 (codified
at 5 U.S.C. 6103(a) (1994)). Congress enacted this legislation to fix the date
of the holiday as the final Thursday in November, which had been its date by
presidential proclamation from 1866 to 1938. However, in 1939 President
Roosevelt's proclamation called for celebration of Thanksgiving on the preceding
Thursday. Displeased with this change, Congress took the matter out of the Chief
Executive's hands. See 87 Cong. Rec. 7653 (1941) (statement of Rep. Michener);
id. at 427071 (statement of Sen. Bridges).

n187. See J. Res. of January 6, 1885, no. 5, 23 Stat. 516; Act of June 28, 1870,
ch. 167, 16 Stat. 168.

n188. See Act of June 28, 1894, ch. 118, 28 Stat. 96 (legislation making Labor
Day a holiday and making the holidays of Christmas, New Year's Day, and
Independence Day permanent) (codified at 5 U.S.C. 6103(a) (1994)); see also
supra note 407.

n189. Remarks on Lighting the National Christmas Tree, 1994 Pub. Papers 2159
(Christmas Message of President Clinton, Dec. 7, 1994).

n190. Message on the Observance of Christmas, 1991 Pub. Papers 1591 (Christmas
message of President Bush, Dec. 11, 1991). Similarly, in his 1990 Message on the
Observance of Christmas, President Bush stated:

As we give and receive the goodwill of Christ during this holy season, let us be
mindful of the true meaning of His life on earth and especially of His greatest
commandment: to love God with all our heart and to love our neighbor as ourself.
Events during the past year have given us a renewed sense of hope, yet in some
parts of the world, peace remains an elusive blessing this Christmas. Even in
some of our own cities, poverty, despair, and drug-related violence prevent
families and individuals from sharing in the promise of this season. Therefore,
let us strive, by following Christ's example in word and deed, to make peace on
Earth a reality for all of God's children.

1990 Pub. Papers 180304 (Message on the Observance of Christmas, Dec. 18, 1990).

n191. 1984 Pub. Papers 1900 (Christmas message of President Reagan, Dec. 21,
1984). Presidents have occasionally issued similar statements regarding the
holidays of non-Christian religions. See, e.g., Message on the Observance of
Ramadan, 32 Weekly Comp. Pres. Docs. 83 (message of President Clinton on the
Muslim holiday of Ramadan, Jan. 19, 1996); Message on the Observance of
Hanukkah, Pub. Papers 2138 (1993) (message of President Clinton on the Jewish
holiday of Hanukkah, Dec. 7, 1993).

n192. See Proclamation No. 6877, 61 Fed. Reg. 15,175 (1996) (President Clinton
referred to 1775 Proclamation).

n193. Adams & Emmerich, supra note 73, at 1589 (quoting President John Adams)
(footnotes omitted).
n194. See Leo Pfeffer, Church, State, and Freedom 266 (rev. ed. 1967).

n195. See Adams & Emmerich, supra note 73, at 1587.

n196. Madison's 1813 proclamation for a day of public humiliation and prayer
provided, in pertinent part:

If the public homage of a people can ever be worthy [of] the favorable regard of
the Holy and Omniscient Being to whom it is addressed, it must be that in which
those who join in it are guided only by their free choice, by the impulse of
their hearts and the dictates of their consciences; and such a spectacle must be
interesting to all Christian nations.

Cord, supra note 75, at 259 (emphasis added).

n197. Borden, supra note 72, at 66 (citing Cong. Globe, 37th Cong., 3d Sess.
1448, 1501 (1862)).

n198. Id. (quoting 6 The Writings of Abraham Lincoln 253 (Arthur B. Lapsky ed.,
1906)). His proclamation stated:

It is the duty of nations as well as of men to own their dependence upon the
overruling power of God; to confess their sins and transgressions in humble
sorrow, yet with assured hope that genuine repentance will lead to mercy and
pardon; and to recognize the sublime truth, announced in the Holy Scriptures and
proved by all history, that those nations only are blessed whose God is the
Lord.

1 Stokes, supra note 31, at xliii.

n199. See 98 Cong. Rec. 771 (1952) (statement of Rep. Priest).

n200. See 98 Cong. Rec. 771 (1952). The Senate version of the prayer legislation
was as follows:

Whereas this Nation is facing serious problems in Korea and elsewhere in the
world because of the challenge of communism to religious freedom and the
fundamental tenets of democracy, which are based on faith in God and the
teachings of His Holy Word; and

Whereas a vast throng of consecrated men and women will on the afternoon of
Sunday, February 17, assemble at the Washington Monument, which was erected by a
grateful people in honor of the Father of Our Country, to offer prayers that God
may guide and protect our Nation and preserve the peace of the world; and

Whereas ministers of the District of Columbia of all faiths have petitioned this
honorable body to express its interest in a national observance of this day of
prayer: Now, therefore, be it Resolved, That it is the sense of the Senate of
the United States that it would be timely and appropriate for all the people of
the United States to offer up their petitions on Sunday, February 17, 1952, in
the spirit of those Founding Fathers who, in declaring their independence from a
foreign ruler, stated their "firm reliance on the protection of the Divine
Providence."

S. Res. 276, 82d Cong., 98 Cong. Rec. 977, 66 Stat. 64 (1952) (codified at 36
U.S.C. 169(h) (1994)).

n201. 98 Cong. Rec. 771 (1952) (statement of Rep. Brooks).

n202. Id.

n203. Id. at 773 (statement of Rep. Busbey).

n204. Id. at 976 (statement of Sen. Robertson).

n205. Id. at A1770 (statement of Rep. Rodino). Representative Rodino's statement

incorporated a resolution adopted by a local Knights of Columbus chapter which
called for a proclamation designating Good Friday as the national day of prayer.
Id.

During debate on the resolution, Representative Busbey expressed his wish that
Reverend Graham be permitted to use the Capitol steps on the first official
National Day of Prayer to conclude his six weeks of evangelistic services. Id.
at 773 (statement of Rep. Busbey). Although his wish was not granted, Reverend
Graham did conclude his evangelical services at the National Guard Armory in
Washington on the National Day of Prayer. His sermon was considered so
significant that it was reproduced in full in the Congressional Record. In this
sermon, Graham tied the fate of the country to the Christian religion as if the
two were inescapably intertwined:

Ladies and gentlemen, our Nation was founded upon God, religion and the church
....

....

Probably the two greatest presidents in American history are Washington and
Lincoln. The outstanding characteristic of both Washington and Lincoln was their
absolute reliance on the God who answers prayer.

....

What a thrilling, glorious thing it would be to see the leaders of our country
today kneeling before Almighty God in prayer. What a thrill would sweep this
country. What renewed hope and courage would grip the Americans at this hour of
peril.

....

I heard some time ago of a cartoon in which Uncle Sam, standing on the ship of
state, turns and says to the representatives of the Christian faith: "It is your
business to keep off from the ship of state the barnacles of greed, selfishness,
and dishonesty." That was supposed to be a compliment to religion. It was to
keep off the barnacles, but was to have nothing to say about the directing of
the ship. This seems to be the common attitude today in America toward Christ
and the civil government. Christ is useful to help keep barnacles off the ship
of state, but it would never do to let him take over the helm. Christ, through
his men, directed the affairs of this Nation for many years and made us the
great Nation that we are; but of late men have come to believe that religion has
no place in the affairs of state. We are directing the ship of state unassisted
by God, past the reefs and through the storms of time. We have dropped our
pilot, the Lord Jesus Christ, and are sailing blindly on without divine chart or
compass, hoping somehow to find our desired haven. We have certain leaders who
are rank materialists; they do not recognize God nor care for Him; they spend
their time in one round of parties after another. The Capital City of our Nation
can have a great spiritual awakening, thousands coming to Jesus Christ, but
certain leaders have not lifted an eyebrow, nor raised a finger, nor showed the
slightest bit of concern.
Ladies and gentlemen, I warn you, if this state of affairs continues, the end of
the course is national shipwreck and ruin.

Id. at A91011.

n206. 36 U.S.C. 169(h) (1994).

n207. See Proclamation No. 2978, 17 Fed. Reg. 5537 (1952); Proclamation No.
3150, 21 Fed. Reg. 6593 (1956); Lynch v. Donnelly, 465 U.S. 668, 677 n.5 (1984)
(citing Proclamations since 1962); Proclamation No. 4795, 45 Fed. Reg. 62,969
(1980); Proclamation No. 6409, 57 Fed. Reg. 8395 (1992); Proclamation No. 6877,
61 Fed. Reg. 15, 175 (1996).

n208. Proclamation No. 6777, 60 Fed. Reg. 14,351 (1995). President Clinton's
first such proclamation suggested that in coming together in prayer, Americans
participate "in an act common to all religions." Proclamation No. 6553, 58 Fed.
Reg. 26,499 (1993).

n209. This phrase was coined by President Lincoln, whose Gettysburg Address
concluded that "this nation, under God, shall have a new birth of freedom - and
that government of the people, by the people, for the people, shall not perish
from the earth." 2 William E. Barton, The Life of Abraham Lincoln 493 (1925)
(emphasis added) (one of nine recorded versions of the 1863 Gettysburg Address,
seven of which contain the phrase "under God").

n210. See Act of Dec. 28, 1945, Pub. L. No. 79-287, 59 Stat. 668 (1945)
(codified at 36 U.S.C. 172 (1994)).

n211. See 100 Cong. Rec. 15,829 (1954) (statement of Rep. Rabaut).

n212. See Act of June 14, 1954, Pub. L. No. 83-396, 68 Stat. 249 (1954)
(codified at 36 U.S.C. 172 (1994)).

n213. Mark Silk, Spiritual Politics: Religion and America Since World War II, at
96 (1988) (citing S. Rep. No. 83-1287, at 1 (1954) (quoting Reverend Docherty),
reprinted in 100 Cong. Rec. 6231 (Senate Report on Pledge of Allegiance
resolution)).

n214. See Silk, supra note 213, at 97.

n215. See S. Rep. No. 83-1297, at 1 (1954), reprinted in 100 Cong. Rec. 6231
(1954).

n216. See H.R. Rep. No. 83-1693, at 1 (1954), reprinted in 1954 U.S.C.C.A.N.
2339, 2340 (noting that the Judiciary Committee and individual members of
Congress had received communications "from all over the United States urging the
enactment of this measure"). Although public support for the change was
overwhelming, it was not monolithic. The Association of Unitarian Ministers in
Boston labeled it ""an invasion of religious liberty.'" Silk, supra note 213, at
97 (quoting N.Y. Times, May 5, 1954).

n217. See 100 Cong. Rec. 1700 (1954) ("The fundamental issue which is the
unbridgeable gap between America and Communist Russia is a belief in Almighty
God." (statement of House sponsor Rep. Rabaut)). See also H.R. Rep. No. 83-1693,
at 12 (1954), reprinted in 1954 U.S.C.C.A.N. at 2340:
At this moment of our history the principles underlying our American Government
and the American way of life are under attack by a system whose philosophy is at
direct odds with our own. Our American Government is founded on the concept of
the individuality and the dignity of the human being. Underlying this concept is
the belief that the human person is important because he was created by God and
endowed by Him with certain inalienable rights which no civil authority may
usurp. The inclusion of God in our pledge therefore would further acknowledge
the dependence of our people and our Government upon the moral directions of the
Creator. At the same time it would serve to deny the atheistic and materialistic
concepts of communism with its attendant subservience of the individual.

See also 100 Cong. Rec. 91 (1954) (statement of Rep. Pillion that the proposal
would "serve to deny the atheistic and materialistic concept of communism [and
that i]t would condemn the absolute and concentrated power of the communistic
slave state with its attendant subservience of the individual").

n218. See 100 Cong. Rec. 861718 (1954), (column of U.S. Senate Chaplain
Frederick Brown Harris, inserted into record by Senate sponsor, Sen. Ferguson,
stating that while ""the saving formula for today's crisis is "a new birth of
freedom," any so-called freedom, if it is not under God, is under sentence of
death'"); 100 Cong. Rec. 1700 (1954) (statement of Rep. Rabaut that the "evil
weed of communism and its branches of materialism and political dictatorship"
stem from the "root of atheism" whereas an "atheistic America ...is a
contradiction in terms").

n219. See H.R. Rep. No. 83-1693, at 2 & n.1 (1954), reprinted in 1954
U.S.C.C.A.N. 2340 & n.1; 100 Cong. Rec. 7759, 776163 (1954) (statements of Rep.
O'Hara and Rep. Wolverton); see also 100 Cong. Rec. 7591 (1954):

Our western civilization is a product of the Christian-Judaic conception of the

individuality and dignity of every human soul. The liberalism of our
constitutional form of government, in turn, is the product and the beacon light
of western civilization and its acceptance of one God with universal and supreme
spiritual significance.

(statement of Rep. Pillion); 100 Cong. Rec. 5069 (1954) (statement of Rep.
Rodino that "recognition of God as the Creator of mankind, and the ultimate
source both of the rights of man and of the powers of government ...." is "the
basis of the political philosophy on which the Federal Government and all the
State governments were built and continue to operate"). It was the Supreme
Court's embrace of this national religiosity that gave the reporting committees
comfort that this legislation did not run afoul of the Establishment Clause:

A distinction must be made between the existence of a religion as an institution

and a belief in the sovereignty of God. The phrase "under God" recognizes only
the guidance of God in our national affairs. The Supreme Court has clearly
indicated that the references to the Almighty which run throughout our laws, our
public rituals, and our ceremonies in no way flout the provisions of the first
amendment.

H.R. Rep. No. 83-1693, at 3 (1954), reprinted in 1954 U.S.C.C.A.N. 234142; see
also S. Rep. No. 83-1287, at 1 (1954), reprinted in 100 Cong. Rec. 6231.

n220. See 100 Cong. Rec. 6919 (1954) (statement of Rep. Angell that "there
should be embodied in the pledge our allegiance and faith in the Almighty God").

n221. Id. at 861718 (column of U.S. Senate Chaplain Frederick Brown Harris,
inserted into record by Sen. Ferguson).
n222. See id. at 759091 (statement of Rep. Pillion that "the inclusion of God in
our pledge would acknowledge the dependence of our people, and our Government
upon the moral direction and the restraints of religion").

n223. See id. at 6919 (statement of Rep. Angell that ""we are directing the Ship
of State, unassisted by God, past the reefs and through the storms of time. We
have dropped our pilot, the Lord Jesus Christ, and are sailing blindly on
without divine chart or compass, hoping somehow to find our desired haven'"
(quoting sermon by Rev. Billy Graham)).

n224. In the words of the House sponsor, "Unless we are willing to affirm our
belief in the existence of God and His creator-creature relation to man, we drop
man himself to the significance of a grain of sand ...." Id. at A1115 (statement
of Rep. Rebaut).

n225. Id. at 1700 (statement of Rep. Rabaut).

n226. H.R. Rep. No. 83-1693, at 3 (1954), reprinted in 1954 U.S.C.C.A.N. 2341
(quoting remarks of Rep. Rabaut before committee). Another Congressman echoed
the same theme: "The recitation of this acknowledgment that God is the
foundation of our nation will be of incalculable value, all through the years,
of ever keeping vividly before our people, including our children who from
earliest childhood, pledge their allegiance to the flag, that the real source of
our strength in the future, as in the past, is God." 100 Cong. Rec. 7763 (1954)
(statement of Rep. Wolverton).

n227. 100 Cong. Rec. 6348 (1954) (statement of Sen. Ferguson).

n228. Id. at 5915 (statement of Sen. Wiley).

n229. Id. at 8618 (statement of Sen. Ferguson incorporating signing statement of

President Eisenhower).

n230. Id. at 8617.

n231. Silk, supra note 213, at 99. This proposal never made it to the floor of
either chamber. See id. at 99100.

n232. George J. Svejda, History of the Star Spangled Banner From 1814 to the
Present ii (1969). The Star Spangled Banner was codified as the National Anthem
in 1931. See Act of Mar. 3, 1931, ch. 436, Pub. L. No. 71-823, 46 Stat. 1508
(1931) (codified at 36 U.S.C. 170 (1988)). The final stanza is as follows:

O, thus be it ever when freemen shall stand

Between their lov'd home and the war's desolation!
Blest with vict'ry and peace may the heav'n rescued land
Praise the power that hath made and preserved us a nation!
Then conquer we must when our cause it is just,
And this be our motto - "In God is our trust."
And the Star-Spangled Banner in triumph shall wave
O'er the land of the free and the home of the brave.

H.R. Rep. No. 84-1959, at 1 (1956), reprinted in 1956 U.S.C.C.A.N. 3720.

n233. George Earle Shankle, State Names, Flags, Seals, Songs, Birds, Flowers,
and Other Symbols 17172 (1941) (quoting Letter from M.R. Watkins to Salmon P.
Chase).
n234. S. Rep. No. 83-1287, at 1 (1954) (quoting Letter from Salmon P. Chase),
reprinted in 100 Cong. Rec. at 6231.

n235. See Stokes & Pfeffer, supra note 72, at 568.

n236. See id.

n237. See id.

n238. See Act of March 3, 1865, ch. 100, 5, 13 Stat. 517, 518. Similar
legislation followed in 1873. See Act of 1873, ch. 131, 18, 17 Stat. 424, 427.

n239. See Stokes & Pfeffer, supra note 72, at 569 (quoting President Theodore
Roosevelt).

n240. See Pub. L. No. 60-120, 35 Stat. 164 (1908) (codified at 31 U.S.C. 5112
(1994)).

n241. See Act of July 11, 1955, Pub. L. No. 84-140, 69 Stat. 290 (1955)
(codified at 31 U.S.C. 5114 (1994)).

n242. 101 Cong. Rec. 4384 (1955) (statement of Rep. Bennett); see also id. at
7796 (statement of Rep. Bennett). The Senate Report on this legislation noted
that since the government began printing paper currency in 1861, "there has been
no inscription on [it] reflecting the spiritual basis of our way of life. This
legislation was intended to correct that oversight." S. Rep. No. 84-637, at 1
(1955), reprinted in 1955 U.S.C.C.A.N. 2417.

n243. See Act of July 31, 1956, Pub. L. No. 84-851, 70 Stat. 732 (1994)
(codified at 36 U.S.C. 186 (1994)).

n244. H.R. Rep. No. 84-1959, at 1 (1956), reprinted in 1956 U.S.C.C.A.N. 3720.

n245. See Stokes & Pfeffer, supra note 72, at 570.

n246. 330 U.S. 1 (1947).

n247. Id. at 1516 (quoting Reynolds v. United States, 98 U.S. 145, 164 (1879)).

n248. 403 U.S. 602 (1971).

n249. See id. at 61213.

n250. 463 U.S. 783 (1983), discussed infra text accompanying notes 313319.

n251. 465 U.S. 668, 688 (1984) (O'Connor, J., concurring).

n252. Id. at 68788 (O'Connor, J., concurring).

n253. Id. at 690 (O'Connor, J., concurring). Justice O'Connor's endorsement

analysis was not entirely novel. The Court had spoken in similar terminology in
several prior opinions. See, e.g., Gillette v. United States, 401 U.S. 437, 450
(1971) (government may not "put an imprimatur on one religion, or on religion as
such, or to favor the adherents of any sect or religious organization"); Engel
v. Vitale, 370 U.S. 421, 429 (1962) (government may not place its "official
stamp of approval" on a particular prayer or form of worship); Torcaso v.
Watkins, 367 U.S. 488, 490 (1961) ("The power and authority of the State of
Maryland thus is put on the side of one particular sort of believers - those who
are willing to say they believe in "the existence of God.'").

n254. 465 U.S. at 694 (O'Connor, J., concurring).

n255. 472 U.S. 38, 56 (1985), discussed infra text accompanying notes 289293.
The plurality, which comprised Justices Stevens, Brennan, Marshall, and
Blackmun, stated that "in applying the purpose test, it is appropriate to ask
"whether the government's actual purpose is to endorse or disapprove of
religion.'" Id. (quoting Lynch, 465 U.S. at 690 (O'Connor, J., concurring)).

n256. 473 U.S. 373, 389 (1985) (if the government "conveys a message of
government endorsement or disapproval of religion, a core purpose of the
Establishment Clause is violated").

n257. 472 U.S. at 70 (O'Connor, J., concurring) (quoting Engel v. Vitale, 370
U.S. 421, 431 (1962)).

n258. Id. at 76 (O'Connor, J., concurring) (emphasis added).

n259. 473 U.S. at 390.

n260. 115 S. Ct. 2440, 245456 (1995) (O'Connor, J., concurring).

n261. See Witters v. Washington Dep't of Serv. for the Blind, 474 U.S. 481, 493
(1986) (O'Connor, J., concurring in part and concurring in judgment); see also
County of Allegheny v. ACLU, 492 U.S. 573, 620 (1989) ("the constitutionality of
[the display's] effect must also be judged according to the standard of a
"reasonable observer'" (citation omitted)).

n262. See 115 S. Ct. at 245556 (O'Connor, J., concurring). Neither the majority
nor the dissent embraced this clarification.

n263. Id. at 2455 (O'Connor, J., concurring). Thus, "[a] State has not made
religion relevant to standing in the political community simply because a
particular viewer of a display might feel uncomfortable." Id.

n264. Id. (O'Connor, J., concurring) (quoting W. Page Keeton et al., Prosser and
Keeton on the Law of Torts 175 (5th ed. 1984)). The goal, however, is not to
favor the majority view over that of the nonadherent. See id. at 2455 (O'Connor,
J., concurring). In making this point, Justice O'Connor cited Tribe, supra note
27, at 1293. Professor Tribe had suggested that "in deciding whether a
government practice would impermissibly convey a message of endorsement, one
should adopt the perspective of a non-adherent; actions that reasonably offend
non-adherents may seem so natural and proper to adherents as to blur into the
background noise of society." Id.; accord Developments, supra note 28, at 1648.
Justice O'Connor clearly rejected this approach in Pinette. See 115 S. Ct. at
2455 (O'Connor, J., concurring). However, in stating that the endorsement test
does not favor the perceptions of the majority over those of nonadherents,
Justice O'Connor was apparently suggesting that the reasonable observer would at
least take into account how the message at issue will be perceived by
nonadherents. In his dissent, Justice Stevens suggested that the proper standard
is one which instead "extends protection to the universe of reasonable persons
and asks whether some viewers of the religious display would be likely to
perceive a government endorsement." Id. at 2466 n.5 (Stevens, J., dissenting)
(emphasis added).

n265. 115 S. Ct. at 2455 (O'Connor, J., concurring). Thus, in Pinette, according
to Justice O'Connor, the reasonable observer would have been aware that the
cross is a religious symbol, that the location of its display was owned by the
state, that a large nearby building was the seat of state government, and that
the cross was displayed in a public park which had, in the past, been used by a
"multiplicity of groups, both secular and religious, [to] engage in expressive
conduct." Id. at 2456 (O'Connor, J., concurring). Such an observer, she
concluded, would not have perceived a message that the state was endorsing the
religious message of the cross. See id. (O'Connor, J., concurring).

n266. See Rosenberger v. Rector & Visitors of the Univ. of Va., 115 S. Ct. 2510,
252223 (1995); Pinette, 115 S. Ct. at 244748 (plurality); Lamb's Chapel v.
Center Moriches Union Free Sch. Dist., 113 S. Ct. 2141, 2148 (1993); Board of
Educ. of the Westside Community Schs. (Dist. 66) v. Mergens, 496 U.S. 226, 24951
(1990) (plurality); County of Allegheny v. ACLU, 492 U.S. 573, 59394 (1989);
Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 89 (1989) (plurality); Edwards v.
Aguillard, 482 U.S. 578, 585 (1987); Witters v. Washington Dep't of Servs. for
the Blind, 474 U.S. 481, 48889 (1986).

n267. Of those on the current Court, Chief Justice Rehnquist, Justice Kennedy,
and Justice Scalia had previously found the endorsement test "flawed in its
fundamentals and unworkable in practice." Allegheny, 492 U.S. at 669 (Kennedy,
J., dissenting).

n268. In Rosenberger, the Court held that the University of Virginia may not
constitutionally deny funding to a religious student group solely because of a
fear that such funding would be perceived as an endorsement by the University of
the group's religious message. Citing Justice O'Connor's concurring opinion in
Lynch, which first articulated the endorsement test, Justice Kennedy, writing
for himself, Chief Justice Rehnquist, and Justices O'Connor, Scalia, and Thomas
concluded that "there is no real likelihood that the speech in question is being
either endorsed or coerced by the State." 115 S. Ct. at 2523 (emphasis added).
Similarly, in Pinette, the plurality opinion, written by Justice Scalia and
joined by the Chief Justice and Justices Kennedy and Thomas, seemed to accept
the constitutional legitimacy of the endorsement test to analyze Establishment
Clause claims involving "expression by the government itself." See 115 S. Ct. at
2447.

n269. Several commentators have analyzed the merits of the endorsement test.
Many have concluded that it is an improvement over Lemon and is better than
Lemon's other competitors. See, e.g., Donald L. Beschle, The Conservative as
Liberal: The Religion Clauses, Liberal Neutrality, and the Approach of Justice
O'Connor, 62 Notre Dame L. Rev. 151, 16382 (1987) (praising the endorsement test
for its compatibility with principles of religious accommodation supported by
the author); Walter Dellinger, The Sound of Silence: An Epistle on Prayer and
the Constitution, 95 Yale L.J. 1631, 163740 (1986) (finding endorsement test an
improvement over inaccurate assumption that a literal, secular purpose is
required under the Lemon test); Loewy, supra note 28, at 1051 (lauding test for
providing more precise focus to Lemon's purpose and effect prongs and for
emphasizing that government cannot convey a message that citizens are inferior
because of their religion). Others have concluded that the test is flawed. See,
e.g., Michael W. McConnell, Religious Freedom at a Crossroads, 59 U. Chi. L.
Rev. 115, 14757 (1992) (citing the impossibility of defining endorsement and the
test's bias in favor of mainstream religions among other problems); Michael
Stokes Paulsen, Lemon is Dead, 43 Case W. Res. L. Rev. 795, 81516 (1993)
(criticizing the subjectivity of the test); Steven D. Smith, Symbols,
Perceptions, and Doctrinal Illusions: Establishment Neutrality and the "No
Endorsement" Test, 86 Mich. L. Rev. 266, 276301 (1987) (finding test to be
imprecise as it focuses improperly on government intent and perceptions, and
criticizing the objective observer construct).

Even though the endorsement test, rather than Lemon, now controls Establishment
Clause analysis, cases decided under Lemon are still useful in an analysis of
whether a given practice violates the Clause, particularly where the analysis in
cases decided under Lemon relied on principles similar to those embodied in the
endorsement test. Thus, it is not unusual for courts applying the endorsement
test to rely on pre-endorsement test cases in their analysis. See, e.g.,
Allegheny, 492 U.S. at 59293 (referencing the school prayer cases, discussed at
infra text accompanying notes 299312, as standing for principle of
non-endorsement). Consequently, in the discussion which follows in the text
above, I examine and then rely on pre-endorsement test cases in analyzing
whether practices involving ceremonial deism violate the endorsement test.

n270. See, e.g., Board of Educ. of Kiryas Joel Village Sch. Dist. v. Grumet, 114
S. Ct. 2481, 2487 (1994) (government may "favor[] neither one religion over
others nor religious adherents collectively over nonadherents"); Texas Monthly,
Inc. v. Bullock, 489 U.S. 1, 8 (1989) (government is forbidden from endorsing
"religion generally" or from placing imprimatur on "religion as such"); School
Dist. of Grand Rapids v. Ball, 473 U.S. 373, 382 (1985) (government must
"maintain a course of neutrality among religions, and between religion and
nonreligion"); Epperson v. Arkansas, 393 U.S. 97, 104 (1968) ("The First
Amendment mandates governmental neutrality between religion and religion, and
between religion and nonreligion."); Torcaso v. Watkins, 367 U.S. 488, 495
(1961) (neither federal nor state government "can constitutionally pass laws or
impose requirements which aid all religions as against non-believers, and
neither can aid those religions based on a belief in the existence of God as
against those religions founded on different beliefs" (footnote omitted)).

n271. See, e.g., Allegheny, 492 U.S. at 605; Larson v. Valente, 456 U.S. 228,
244 (1982).

n272. See, e.g., Lee v. Weisman, 505 U.S. 577, 592 (1992); Edwards v. Aguillard,
482 U.S. 578, 584 (1987); Grand Rapids, 473 U.S. at 390; Wallace v. Jaffree, 472
U.S. 38, 6061 n.51 (1985).

n273. See, e.g., Kiryas Joel, 114 S. Ct. at 2493; Allegheny, 492 U.S. at 618;
Larkin v. Grendel's Den, Inc., 459 U.S. 116, 12324 (1982); School Dist. of
Abington Township v. Schempp, 374 U.S. 203, 265 (1963) (Brennan, J.,
concurring); Jager v. Douglas County Sch. Dist., 862 F.2d 824, 82930 (11th Cir.
1989); Lubbock Civil Liberties Union v. Lubbock Indep. Sch. Dist., 669 F.2d
1038, 1045 (5th Cir. 1982); Karen B. v. Treen, 653 F.2d 897, 901 (5th Cir.
1981).

n274. See Allegheny, 492 U.S. at 601 n.51, 613 n.59; Texas Monthly, Inc. v.
Bullock, 489 U.S. 1, 1819 & n.8 (1989); Corporation of the Presiding Bishop of
the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 338
(1987); Wallace, 472 U.S. at 57 n.45.

n275. Schempp, 374 U.S. at 226; see West Virginia Bd. of Educ. v. Barnette, 319
U.S. 624, 638 (1943) ("The very purpose of the Bill of Rights was ... to place
[certain subjects] beyond the reach of majorities ....").

n276. 393 U.S. 97 (1968).

n277. 482 U.S. 578.

n278. 393 U.S. at 10708.

n279. Id. at 108 n.16 (quoting Advertisement, The Bible or Atheism, Which?,
Arkansas Gazette, Nov. 4, 1928, at 12 (advertisement supporting the Act)).
n280. 482 U.S. at 59495.

n281. Id. at 591.

n282. Id. at 593.

n283. Id.

n284. 449 U.S. 39 (1980) (per curiam).

n285. Id. at 41 (footnote omitted).

n286. Id. at 42.

n287. Id. at 41 n.3 (quoting School Dist. of Abington Township v. Schempp, 374
U.S. 203, 224 (1963)).

n288. Id. at 42.

n289. 472 U.S. 38 (1985).

n290. See id. at 56.

n291. Id. at 57 n.43 (quoting statement by Sen. Donald Holmes).

n292. Id. at 59.

n293. Id. at 56.

n294. 366 U.S. 420 (1961).

n295. Id. at 431.

n296. See id. at 444.

n297. See id. at 442.

n298. One might question why I have not analyzed Sunday closing laws through the
ceremonial deism lens. First, I do not consider Sunday closing laws ceremonial
deism. Rather, such laws codify religious law itself, namely the Fourth
Commandment. Second, Sunday closing laws are on the wane: of the fifty states
that had such laws at the time of McGowan, only thirteen retain them today. See
Ala. Code 13A-12-1 (1996); Conn. Gen. Stat. 53-302A (1996); Ky. Rev. Stat. Ann.
436.160 (1996); Me. Rev. Stat. Ann. tit. 17, 3204 (1996); Mass. Gen. Laws ch.
136, 5 (1996); N.H. Rev. Stat. Ann. 332-D:1 (1996); N.Y. Gen. Bus. Law 5
(McKinney 1996); N.D. Cent. Code 12.1-30-01 (1996); 18 Pa. Cons. Stat. 7363
(1996); R.I. Gen. Laws 11-40-1 (1996); S.C. Code Ann. 53-1-40 (Law Co-op. Michie
1996); Va. Code Ann. 18.2-341 (1996); W. Va. Code 61-10-25 (1996).

n299. 370 U.S. 421, 422 (1962) (quoting Regents' prayer).

n300. Id. at 42425.

n301. See id. at 425.

n302. Id.

n303. Id. at 429 (emphasis added).

n304. Id. at 430.

n305. Id. at 431.

n306. Id. at 436 (quoting James Madison, Memorial and Remonstrance Against
Religious Assessments, in 2 The Writings of James Madison 183, 18586 (Gaillard
Hunt ed., 1901)).

n307. See School Dist. of Abington Township v. Schempp, 374 U.S. 203 (1963).

n308. See id. at 20507.

n309. Id. at 223.

n310. Id. at 224.

n311. See id. at 22425.

n312. Id. at 225.

n313. See Marsh v. Chambers, 463 U.S. 783 (1983).

n314. Id. at 786.

n315. Id.

n316. See id. at 790:

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.

n317. Id. at 791.

n318. Id. at 792. It bears noting that the Court concluded that the Nebraska
prayers were constitutionally permissible in part because "there is no
indication that the prayer opportunity has been exploited to proselytize or
advance any one, or to disparage any other, faith or belief." Id. at 79495.
Whether or not that statement was true regarding the Nebraska prayers, see id.
at 823 n.2 (Stevens, J., dissenting) (pointing out the "clearly sectarian
content of some of the prayers given by Nebraska's chaplain"), it is most
definitely not true regarding prayers delivered by congressional chaplains
throughout our nation's history. See supra notes 115119 and accompanying text;
see also infra note 335 (applying this principle to congressional prayer).

n319. Id. at 796 (Brennan, J., dissenting).

n320. See Lynch v. Donnelly, 465 U.S. 668 (1984).

n321. See id. at 67378.

n322. Id. at 682.

n323. It is not only for these reasons that my analysis of the constitutionality
of ceremonial deism in the succeeding section does not rely on Marsh or Lynch.
As Parts IV.A and IV.B demonstrate, those cases' reliance on history and
tradition to support the constitutionality of the challenged practices was
wholly out of step with the broad sweep of twentieth century constitutional
jurisprudence. Accepting the Marsh/Lynch premise that history and tradition can
validate a practice irrespective of the specific constitutional doctrine at
issue, dozens of governmental practices - both religious and nonreligious - that
have been invalidated by the Court would still be constitutionally permissible
today. See infra notes 432437, 457 and accompanying text.

n324. See County of Allegheny v. ACLU, 492 U.S. 573 (1989).

n325. Allegheny, 492 U.S. at 57980 & n.5.

n326. Id. at 598.

n327. Id. at 599600.

n328. Id. at 612.

n329. Lee v. Weisman, 505 U.S. 577, 58182 (1992).

n330. Id. at 582.

n331. Several commentators have contended that Justice Kennedy's liberal

formulation of the coercion test was, in reality, Justice O'Connor's endorsement
test in disguise. See, e.g., Daniel O. Conkle, Lemon Lives, 43 Case W. Res. L.
Rev. 865, 880 (1993); Steven G. Gey, Religious Coercion and the Establishment
Clause, 1994 U. Ill. L. Rev. 463, 50001.

n332. 505 U.S. at 592.

n333. Id. at 594.

n334. I will content myself here to address legislative prayers as delivered by

congressional chaplains. Suffice it to say that the same arguments regarding
congressional prayers could be applied to state legislative prayers and prayers
delivered to municipal bodies. See Bogen v. Doty, 598 F.2d 1110 (8th Cir. 1979)
(upholding prayers before county board meetings); Colo v. Treasurer and Receiver
Gen., 392 N.E.2d 1195 (Mass. 1979) (upholding prayers before state legislative
sessions); Lincoln v. Page, 241 A.2d 799 (N.H. 1968) (upholding prayers before
town meetings); Marsa v. Wernik, 430 A.2d 888 (N.J. 1981) (upholding prayers
before municipal body meetings); Society of Separationists, Inc. v. Whitehead,
870 P.2d 916 (Utah 1993) (upholding prayers before city council meetings).

n335. Indeed, few, if any, congresspersons attend these daily prayers, even
though it is for them that the prayers are ostensibly delivered. See infra notes
491499 and accompanying text, discussing the argument that forms of ceremonial
deism can be defended as permissible accommodations to the religious beliefs of
American citizens.

n336. The television coverage includes the daily prayers. See Letter from C-SPAN
Viewer Services, C-SPAN, to Steve Epstein (Sept. 24, 1996) (on file with the
Columbia Law Review).

n337. Engel v. Vitale, 370 U.S. 421, 42425 (1962) (prayer to be recited at
beginning of school day); see also State Bd. of Educ. v. Board of Educ. of
Netcong, 262 A.2d 21, 31 (N.J. Super. Ct. Ch. Div. 1970), discussed infra note
346.

n338. See Facsimile Transmission from the Office of the Chaplain, U.S. Senate,
to Steve Epstein (Sept. 23, 1996) (on file with the Columbia Law Review);
Facsimile Transmission from the Office of the Chaplain, U.S. House of
Representatives, to Steve Epstein (Sept. 25, 1996) (on file with the Columbia
Law Review).

n339. 138 Cong. Rec. S1515 (daily ed. Feb. 18, 1992) (prayer given by Rev.
Richard C. Halverson (quoting Woodrow Wilson)).

n340. See supra notes 117118. If Marsh v. Chambers stands for the proposition
that the content of legislative prayer is constitutionally problematic if it
"has been exploited to proselytize or advance only one ... faith or belief," 463
U.S. 783, 49495 (1983), then Marsh itself suggests that these congressional
prayers are unconstitutional. See supra note 315.

n341. County of Allegheny v. ACLU, 492 U.S. 573, 598 (1989) (applying reasoning
to nativity scene display).

n342. Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (O'Connor, J., concurring)
(making statement in reference to religious display).

n343. Wallace v. Jaffree, 472 U.S. 38, 70 (1985) (O'Connor, J., concurring)
(quoting Engel v. Vitale, 370 U.S. 421, 431 (1962)) (using language in reference
to case involving statute providing for moment of silence in public schools). It
also "bears the imprint of the State" and "employs the machinery of the State to
enforce a religious orthodoxy." Lee v. Weisman, 505 U.S. 577, 590, 592 (1992)
(using language in reference to commencement prayer case). If "it is no part of
the business of government to compose official prayers," Engel v. Vitale, 370
U.S. 421, 425 (1962), the composition of these congressional prayers by
government-paid chaplains must violate the Establishment Clause.

n344. Capitol Square Review and Advisory Bd. v. Pinette, 115 S. Ct. 2440, 2455
(1995) (O'Connor, J., concurring) (public display of Latin cross).

n345. Allegheny, 492 U.S. at 67374 (Kennedy, J., concurring in part and
dissenting in part).

n346. This fact was well illustrated in State Bd. of Educ. v. Board of Educ. of
Netcong, 262 A.2d 21 (N.J. Super. Ct. Ch. Div. 1970). In that case, high school
students, with the approval of the school principal, gathered in the gymnasium
prior to classes, where students read aloud congressional chaplains' prayers
directly from the Congressional Record, citing the date and volume number. See
id. at 23. Noting that these prayers include passages from the Bible, avowals of
divine faith, and supplications to God, the court concluded that the practice of
reading them in the school setting violated the Establishment Clause. See id. at
31. If it is unconstitutional for students to read these legislative prayers in
the school setting, it is difficult to understand why it is permissible for
Congress to authorize and endorse them in the first instance.

n347. See Rotstein, supra note 28, at 1793.

n348. See infra notes 428446 and accompanying text for further discussion of why
the Marsh Court's original intent and historical analyses are flawed.

n349. Marsh v. Chambers, 463 U.S. 783, 801 (1983) (Brennan, J., dissenting).

n350. See supra text accompanying notes 122129.

n351. See supra text accompanying note 124.

n352. See supra text accompanying notes 123, 125.

n353. See Lynch v. Donnelly, 465 U.S. 668, 690 (1984) (O'Connor, J., concurring)
(religious display).

n354. Wallace v. Jaffree, 472 U.S. 38, 59 (1985); see supra text accompanying
notes 289293.

n355. Edwards v. Aguillard, 482 U.S. 578, 599 (1987) (Powell, J., concurring)
(statute requiring teaching Creationism).

n356. Wallace, 472 U.S. at 56.

n357. For that matter, the Great Seal of the United States standing alone fails
to pass muster under the endorsement test. The Great Seal's religious imagery of
the all-seeing Eye of Providence coupled with the motto Annuit Coeptis, "God has
favored our undertaking," see supra note 129 and accompanying text, is
constitutionally indistinguishable from the religious imagery of the creche
coupled with the inscription Gloria in Excelsis Deo, "Glory to God in the
highest," that the Court found impermissible in Allegheny. See supra notes
324328 and accompanying text.

n358. School Dist. of Abington Township v. Schempp, 374 U.S. 203, 224 (1963)
(school prayer case).

n359. Lee v. Weisman, 505 U.S. 577, 594 (1992) (citation omitted) (commencement
prayer).

n360. See supra text accompanying notes and 122129.

n361. See supra text accompanying note 274.

n362. Only one published opinion has addressed the constitutional permissibility
of legislative prayer rooms. In Van Zandt v. Thompson, 839 F.2d 1215 (7th Cir.
1988), the Seventh Circuit, relying heavily on Marsh, held that the Illinois
legislature did not violate the Establishment Clause by setting aside a room in
which members could pray. "If legislators may collectively bow their heads while
a clergyman, paid from public funds, invokes the Deity to bless and assist their
efforts, it seems absurd to find fault with the designation of a room in which
they may pray or meditate privately as they individually see fit." Id. at 1220.

n363. See supra text accompanying notes 130144; see also 139 Cong. Rec. S55, S58
(daily ed. Jan. 20, 1993); 135 Cong. Rec. S67, S70 (daily ed. Jan. 20, 1989);
131 Cong. Rec. 630, 633 (1985); 127 Cong. Rec. 541, 543 (1981); 123 Cong. Rec.
1861, 1863 (1977); 119 Cong. Rec. 1658, 166061 (1973); 115 Cong. Rec. 1289, 1292
(1969); 111 Cong. Rec. 984, 986 (1965); 107 Cong. Rec. 1011, 1013 (1961); 103
Cong. Rec. 80506 (1957); 99 Cong. Rec. 450, 452 (1953); 95 Cong. Rec. 476, 47879
(1949); 91 Cong. Rec. 36465 (1945); 87 Cong. Rec. 18890 (1941); 83 Cong. Rec.
316, 318 (1937). From 1949 to 1973 and in 1985, a Jewish Rabbi was also asked to
deliver a prayer, although at least two and as many as four Christian prayers
were delivered at these inaugurations as well. See 45 Cong. Rec. 47679 (1949)
(one of three prayers by Jewish Rabbi); 99 Cong. Rev. 45052 (1953) (same); 103
Cong. Rec. 80406 (1957) (one of four prayers by Jewish Rabbi); 107 Cong. Rec.
101013 (1961) (same); 111 Cong. Rec. 98486 (1965) (same); 115 Cong. Rec. 128992
(1969) (one of five prayers by Jewish Rabbi); 119 Cong. Rec. 165861 (1973) (one
of four); 131 Cong. Rec. S371 (daily ed. Jan. 21, 1985) (one of four).

n364. See supra notes 138144 and accompanying text.

n365. Indeed, if it is unconstitutional for a school system to have public

school teachers lead students in the recitation of the Lord's Prayer, see supra
text accompanying notes 307312, it should be equally (if not more)
unconstitutional for a minister to lead the entire nation in the recitation of
the very same prayer during a presidential inauguration. See supra notes 137141
and accompanying text.

n366. The constitutionality of inaugural prayer has never been challenged in

court.

n367. See, for example, President Clinton's inaugural address, quoted supra text
accompanying note 152.

n368. See Esbeck, supra note 159, at 604 n.83 ("It is expected that a reasonable
member of an audience, upon hearing the President speak of religious belief or
practice, understands that the President does so out of a reflection of his own
faith and not as one explicating official policy or prescribing rules of citizen
conduct.").

n369. There are certainly some disturbing implications to such a conclusion.

Since 1984, three ministers have run for president - Jesse Jackson (1984 and
1988), Pat Robertson (1988), and Alan Maynard Keyes (1996) - and another
recurring candidate, Pat Buchanan (1992 and 1996), espouses views that are, for
the most part, aligned with those of the Christian Coalition. The danger of such
a person using the presidential office to proselytize is manifest. Nevertheless,
even in such a context, the clash of the Free Speech and Establishment Clauses,
together with the difficulty of enforcing a constitutional prohibition, would
still exist. See Douglas Laycock, "Nonpreferential" Aid to Religion: A False
Claim About Original Intent, 27 Wm. & Mary L. Rev. 875, 922 n.239 (1986) (noting
"the difficult task of distinguishing the personal and official speech of
government officials").

n370. To my knowledge, the constitutionality of presidential references to the

deity has never been challenged in court.

n371. Engel v. Vitale, 370 U.S. 421, 439 (1962) (Douglas, J., concurring)
(school prayer case).

n372. Wallace v. Jaffree, 472 U.S. 38, 70 (1985) (O'Connor, J., concurring).

n373. Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (O'Connor, J., concurring)
(religious display); see also Loewy, supra note 28, at 1057.

n374. See supra text accompanying notes 304, 333.

n375. See, e.g., Developments, supra note 28, at 1653 n.61 (arguing that such an
invocation lends support to the dominant religion and shows a preference for
particular forms of religion). The Fourth Circuit's analysis in North Carolina
Civil Liberties Union Legal Found. v. Constangy, 947 F.2d 1145 (4th Cir. 1991),
is also worth examining. That case involved a state court judge who opened each
court session with the following prayer:

"O Lord, our God, our Father in Heaven, we pray this morning that you will place
your divine guiding hand on this courtroom and that with your mighty
outstretched arm you will protect the innocent, give justice to those who have
been harmed and mercy to us all. Let truth be heard and wisdom be reflected in
the light of your presence with us here today.

Amen."
Id. at 1147 (quoting appendix). In view of the testimony of litigants and
attorneys who had appeared before the judge and felt pressure to join him in
prayer, the court held that "when a judge sits on the bench, says "Let us pause
for a moment of prayer,' and proceeds to recite a prayer in court, clearly the
court is conveying a message of endorsement of religion." Id. at 1151.
Nevertheless, the court distinguished the traditional judicial invocation as a
permissible form of "ceremonial deism" without current theological significance.
See id.

n376. Zorach v. Clauson, 343 U.S. 306, 313 (1952).

n377. Engel v. Vitale, 370 U.S. 421, 441 (1962) (Douglas, J., concurring).

n378. See Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 2930 (1989) (Scalia, J.,
dissenting). Justice Scalia concludes, however, that endorsement of such
practices should be constitutional.

n379. Electronic Mail Message from Mary Beth Welch, Law Clerk to Judge Lynn N.
Hughes, to Steven B. Epstein (Nov. 13, 1995) (on file with the Columbia Law
Review).

n380. To my knowledge, the constitutionality of the judicial invocation that is

standard in federal courts has never been challenged in court.

n381. See supra text accompanying notes 157170.

n382. For evidence that the religious nature of the oath still predominates, see
supra note 171 and accompanying text. In this regard, oaths are constitutionally
distinguishable from religious names of cities - such as San Francisco, Los
Angeles, and Corpus Christi. Though these cities obviously received their names
for religious reasons, the names survive constitutional scrutiny today because
to most Americans, be they in the religious mainstream, religious minorities, or
nonreligionists, these names represent geographical locations and cultural
identities, not religious ideas or principles. Residents and visitors to such
cities, unlike public officers who are asked to swear their oaths, are not
called upon to appeal to the deity. But see Laycock, supra note 28, at 8 nn.3839
(contending that such religious names are unconstitutional). It would be another
matter, however, if a municipality first establishing itself today sought to
adopt a religious name since such an action would have a religious effect in the
present.

n383. 367 U.S. 488 (1961).

n384. See id. at 49296.

n385. Id. at 490.

n386. Id. That the original text of the United States Constitution can be read
to implicitly require public officers to swear their oaths in the eyes of God,
see supra note 158, does not immunize the practice from constitutional attack,
for it is not the original text of the Constitution which regulates the limits
of interactions between government and religion. It must not be forgotten that
the First Amendment was enacted and ratified subsequent to the original text of
the Constitution. Consequently, the Establishment Clause necessarily qualifies
any of the original text which touches upon the subject of government
interaction with religion: to the extent the original text is inconsistent with
the Establishment Clause, the original text, not the Establishment Clause, must
yield. And, under the prevailing Establishment Clause test, the practice of
swearing public officer oaths is inconsistent with the First Amendment and is
unconstitutional despite the language of the original text. For the same reason,
the oaths referred to in the original text of the Constitution do not broadly
legitimize similar ceremonial uses of religion: only the Establishment Clause
itself could provide such legitimation.

n387. Stone v. Graham, 449 U.S. 39 (1980) (per curiam), discussed supra text
accompanying notes 284288. Indeed, one court has prohibited the display of the
Ten Commandments in the courthouse. See Harvey v. Cobb County, 811 F. Supp. 669
(N.D. Ga. 1993). But cf. Alabama Freethought Assoc. v. Moore, 893 F. Supp. 1522
(N.D. Ala. 1995) (dismissing for lack of standing a claim involving a similar
display in a courtroom). It is ironic that a court would correctly apply Stone
to the display of the Ten Commandments in the courtroom without seeing the
inconsistency in permitting the display of the entire Bible in the very same
courtroom.

n388. County of Allegheny v. ACLU, 492 U.S. 573 (1989).

n389. Id. at 599600; see Kelly C. Crabb, Religious Symbols, American Traditions
and the Constitution, 1984 B.Y.U. L. Rev. 509, 53435 (use of the Bible for oaths
"is arguably no less symbolic than in the Kentucky statute" at issue in Stone v.
Graham, 449 U.S. 39 (1980) (per curiam)).

n390. See Torcaso, 367 U.S. at 490; Everson v. Board of Educ., 330 U.S. 1, 1516
(1947).

n391. In fact, a witness or juror who insists on "affirming" instead of swearing

an oath will be asked to tell the truth "upon penalty of perjury," rather than
"so help me God." See Federal Judicial Center, supra note 171, at 1; E.D.N.C.
Oaths," supra note 171 ("penalty and pain of injury"). Moreover, when groups of
jurors are sworn in simultaneously, the Bible is not typically used - since it
would be impossible for multiple people to place their hands on the Bible
simultaneously - and yet the justice system does not come crashing to a halt.
See id. If the Bible is not necessary to swear in groups, it is hard to
understand what compels its use when swearing in individuals. At least one
federal judge, Lynn N. Hughes of the Southern District of Texas, has taken both
the Bible and God out of the oath, asking witnesses merely to swear "to tell the
truth, the whole truth, and nothing but the truth." Electronic Mail Message from
Mary Beth Welch, Law Clerk to Judge Lynn N. Hughes, to Steven B. Epstein (Dec.
13, 1995) (on file with the Columbia Law Review).

n392. When the Chief Justice of the United States notes how "Congress has made
the giving of false answers [in testifying] a criminal act punishable by severe
penalties" because "even the solemnity of the oath ... cannot insure [sic]
truthful answers," United States v. Mandujano, 425 U.S. 564, 576 (1976) (Burger,
Ch. J.), it is doubtful that, in modern times, the oath in reality achieves the
intended purpose of truthful testimony. "In an age of almost universal
competency and broad admissibility of evidence, the sworn testimony rule no
longer embodies the "highest possible security which men in general can give for
the truth of their statements.' " Note, supra note 166, at 1707 (quoting
Whitcombe, supra note 157, at 39). There has been at least one Establishment
Clause challenge to a public officer oath, which was dismissed for lack of
standing. See Doe v. Louisiana Supreme Court, Civ. A. No. 91-1675, 1992 WL
373566 (E.D. La. Dec. 8, 1992) (oaths of attorney and of notary public). To my
knowledge, the constitutionality of the courtroom oath has never been challenged
in court.

n393. Cf. American Jewish Congress v. City of Chicago, 827 F.2d 120, 129 (7th
Cir. 1987) (Easterbrook, J., dissenting) (recognizing Christian symbology of
phrase).
n394. County of Allegheny v. ACLU, 492 U.S. 573, 598 (1989).

n395. Id. at 600 (creche case).

n396. See Bureau of the Census, U.S. Dep't of Commerce, Statistical Abstract of
the United States 1994, at 70 (1994) (as of 1991, 56% of Americans were
Protestant, 25% were Catholic, 2% were Jewish, 6% belonged to other religions,
and 11% had no religious preference) [hereinafter 1994 Statistical Abstract].

n397. Two federal district court cases have addressed the constitutionality of
the use of this phrase. See Doe v. Louisiana Supreme Court, Civ. A. No. 91-1635,
1992 WL 373566 (E.D. La. Dec. 8, 1992); benMiriam v. Office of Personnel Mgmt.,
647 F. Supp. 84 (M.D.N.C. 1986). In Doe, the plaintiff claimed that the use of
the phrase on Louisiana law licenses violated the Establishment Clause. Calling
the phrase a form of "ceremonial deism," comparable to the national motto, the
Pledge of Allegiance, and the like, the court concluded that use of the phrase
passed muster under the Establishment Clause. See Doe, 1992 WL 373566, at *67.
In benMiriam, plaintiff contended that the use of the abbreviation "A.D." on a
government form violated the Free Exercise Clause. The court concluded that the
abbreviation had solely secular impact and, therefore, did not infringe upon the
plaintiff's religious liberty. See benMiriam, 647 F. Supp. at 86. Both courts
drew support from the fact that the signature page of the Constitution itself
used the phrase "in the year of our Lord." See Doe, 1992 WL 373566, at *6;
benMiriam, 647 F. Supp. at 85. This support, however, is misplaced for two
reasons. First, the signatory to the original text of the Constitution is not a
substantive constitutional provision which authorizes governmental conduct.
Second, and more significantly, at the time of the signatory in 1787, the First
Amendment's Establishment Clause had not yet been drafted, let alone enacted or
ratified. That governmental use of this phrase may have been permissible under a
pre-Establishment Clause Constitution does not in any manner speak to the
question whether governmental use of this phrase is permissible under the
Establishment Clause itself. Hence, that the original text of the Constitution
included the phrase "in the year of our Lord" is irrelevant to the
constitutional permissibility of this practice. See supra note 386.

n398. If nothing else, it is ironic that the dictionary definition of "holiday"

begins with its origin as a "HOLY DAY." Merriam-Webster's Collegiate Dictionary
553 (10th ed. 1994).

n399. See supra text accompanying notes 174180.

n400. See County of Allegheny v. ACLU, 492 U.S. 573, 631 (1989) (O'Connor, J.,
concurring) ("The celebration of Thanksgiving as a public holiday, despite its
religious origins, is now generally understood as a celebration of patriotic
values rather than particular religious beliefs.").

n401. See supra text accompanying note 184.

n402. Lynch v. Donnelly, 465 U.S. 668, 675 (1984) (religious display case).

n403. Allegheny, 492 U.S. at 671 (Kennedy, J., dissenting). It is precisely

because such historically accepted religious practices would fail the
endorsement test that leads Justice Kennedy to be critical and nonaccepting of
this test. See supra note 455. Even Justice Scalia agrees that the public
holiday of Thanksgiving conveys a message of governmental endorsement of
religion. See Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 2930 (1989) (Scalia,
J., dissenting).
n404. 27 Wkly. Comp. Pres. Doc. 1807 (Christmas message of President Bush, Dec.
11, 1991). "Celebrating Christmas without endorsing Christianity would seem to
be an obvious impossibility ...." Douglas Laycock, "Noncoercive" Support for
Religion: Another False Claim About the Establishment Clause, 26 Val. U. L. Rev.
37, 60 (1991).

n405. Lynch, 465 U.S. at 675.

n406. See Allegheny, 492 U.S. at 598602.

n407. "Whatever can be said for the creche as primarily representing the birth
of Jesus Christ, the same argument seems relevant for Christmas itself. Merely
calling it a secular celebration does not eradicate its religious meaning."
Crabb, supra note 389, at 545 n.184. Indeed, the majority in Lynch implicitly
accepted the equivalence of the holiday itself and government-sponsored nativity
scenes: "Display of the creche is no more an advancement or endorsement of
religion than the Congressional and Executive recognition of the origins of the
Holiday itself as "Christ's Mass' ...." 465 U.S. at 683. Accepting this
proposition as true, if symbolic depiction of the holiday endorses religion and
violates the Establishment Clause, as the Court concluded in Allegheny, then the
holiday itself also endorses religion and violates the Establishment Clause. As
such, Justice Brennan's justification of the constitutional permissibility of
the holiday is wholly unpersuasive. See Lynch, 465 U.S. at 710 n.16 (Brennan,
J., dissenting):

It is worth noting that Christmas shares the list of federal holidays with such
patently secular, patriotic holidays as the Fourth of July, Memorial Day,
Washington's Birthday, Labor Day, and Veterans Day. We may reasonably infer from
the distinctly secular character of the company that Christmas keeps on this
list that it too is included for essentially secular reasons.

(citation omitted).

n408. See Developments, supra note 28, at 1653 n.61:

Granting official recognition to Christmas and Thanksgiving singles out discrete

religious traditions for state-sponsored public celebration, to the exclusion of
other religions whose adherents are thereby told that their beliefs are less
deserving of state support. Government recognition of these holidays (holi-days)
is consistent with the establishment clause objective of avoiding imposition of
religious belief only on the premise that they have lost much of their religious
content, an assumption that is belied by the fact that much of their appeal lies
in their connection to religious faith.

Neither the Thanksgiving nor Christmas holidays have ever been challenged on
Establishment Clause grounds. One court has, however, considered the
constitutionality of a county ordinance prohibiting the sale of alcohol on
Christmas day or night. See Silver Rose Entertainment v. Clay County, 646 So. 2d
246, 253 (Fla. Dist. Ct. App. 1994) (finding ordinance constitutionally
permissible because "Christmas enjoys a special constitutional status by virtue
of the secular traditions associated with it").

n409. See supra text accompanying notes 199205.

n410. Allegheny, 492 U.S. at 672 (Kennedy, J., dissenting).

n411. Wallace v. Jaffree, 472 U.S. 38, 59 (1985).

n412. The majority in Allegheny paused to recognize the potential Establishment

Clause problem inherent in the National Day of Prayer:

It is worth noting that just because Marsh sustained the validity of legislative
prayer, it does not necessarily follow that practices like proclaiming a
National Day of Prayer are constitutional. Legislative prayer does not urge
citizens to engage in religious practices, and on that basis could well be
distinguishable from an exhortation from government to the people that they
engage in religious conduct. But, as this practice is not before us, we express
no judgment about its constitutionality.

492 U.S. at 603 n.52 (citation omitted). To my knowledge, the constitutionality

of the National Day of Prayer, despite this implicit invitation, has never been
challenged in court.

n413. Wallace, 472 U.S. at 57 n.43 (quoting statement by Sen. Holmes).

n414. H.R. Rep. No. 83-1693, at 3 (1954), reprinted in 1954 U.S.C.C.A.N. 2341
(quoting remarks of Rep. Rabaut before House Judiciary Committee).

n415. See supra text accompanying note 279.

n416. See 100 Cong. Rec. 1700 (1954) (statement of Rep. Rabaut).

n417. See supra text accompanying notes 209216.

n418. Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (O'Connor, J., concurring)
(religious display).

n419. School Dist. of Grand Rapids v. Ball, 473 U.S. 373, 390 (1985).

n420. See Lee v. Weisman, 505 U.S. 577, 594 (1992).

n421. See Wallace, supra note 15, at 1217.

n422. Students whose sincere religious beliefs tell them that there is no God,
or at least no monotheistic God, are compelled either to say something that they
do not believe and dishonor their own conscience and beliefs in the process, or
to publicly disclose their disbelief by not participating in the Pledge of
Allegiance. See Conkle, supra note 28, at 1185 n.283 ("in many settings, such as
the public schools, the pledge is likely to be used in a manner that is directly
coercive"); Loewy, supra note 28, at 105859 (arguing that the Pledge of
Allegiance is more coercive than the Regents' prayer in Engel because it
intertwines patriotism and national loyalty with religion); cf. Seabourn v.
Coronado Area Council, 891 P.2d 385, 391 (Kan. 1995) (atheist denied position as
Boy Scout leader because of his religious beliefs testified that "when I say the
Pledge of Allegiance, I pledge my oath to "one Nation under nothing.'"). Indeed,
the Supreme Court recognized the compulsion inherent in the Pledge of Allegiance
on Jehovah's Witnesses even before the words "under God" were added. See West
Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 63334 (1943) (holding
unconstitutional compulsion of flag salute on Jehovah's witnesses); 4 Ronald
Rotunda & John Nowak, Treatise on Constitutional Law: Substance & Procedure
21.7, at 53536 (2d ed. 1992).

n423. See Lee, 505 U.S. at 639 (Scalia, J., dissenting) ("recital of the Pledge
would appear to raise the same Establishment Clause issue as the invocation and
benediction" at issue in Lee); County of Allegheny v. ACLU, 492 U.S. 573, 673
(1989) (Kennedy, J., dissenting) ("It borders on sophistry to suggest that the
"reasonable' atheist would not feel less than a "full member of the political
community' every time his fellow Americans recited, as part of their expression
of patriotism and love for country, a phrase he believed to be false."); Texas
Monthly, Inc. v. Bullock, 489 U.S. 1, 2930 (1989) (Scalia, J., dissenting)
(reference to deity in Pledge conveys governmental endorsement of religion);
Wallace v. Jaffree, 472 U.S. 38, 88 n.3 (1985) (Burger, C.J., dissenting)
(citing legislative history of Pledge amendment for proposition that "if this is
simply "acknowledgment,' not "endorsement,' of religion, ... the distinction is
far too infinitesimal for me to grasp"). Two reported decisions have upheld the
constitutionality of the Pledge amendment. In the first, Smith v. Denny, 280 F.
Supp. 651 (E.D. Cal. 1968), the district court dismissed the case for lack of a
substantial constitutional question, finding that the phrase is a permissible
form of ceremonial deism. In the second, Sherman v. Community Consol. Sch. Dist.
21 of Wheeling Township, 980 F.2d 437, 44547 (7th Cir. 1992), Judge Easterbrook,
writing for a unanimous Seventh Circuit panel, grounded the court's decision on
numerous interactions between government and religion that were noted in Lynch
and the dicta in Supreme Court decisions distinguishing the Pledge of Allegiance
and other forms of "ceremonial deism" from practices that were found to violate
the Establishment Clause.

n424. 101 Cong. Rec. 4384 (1955) (statement of Rep. Bennett); see Choper, supra
note 28, at 947 ("the placement of "In God We Trust' on coins and currency ...
seems to have no real purpose other than a religious one").

n425. Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (O'Connor, J., concurring)
(making statement in reference to religious display case); see Van Alstyne,
supra note 14, at 771, 787 (arguing that the movement from "E Pluribus Unum" to
"In God We Trust" makes outcasts of those who reject the state's brand of
monotheism).

n426. School Dist. of Grand Rapids v. Ball, 473 U.S. 373, 390 (1985). Even
Justice Scalia agrees that the motto conveys a message of governmental
endorsement of religion, although he believes such an endorsement to be
acceptable. See Texas Monthly, 489 U.S. at 2930 (Scalia, J., dissenting).

n427. See Lee, 505 U.S. at 58890 (nonsectarian nature of prayer immaterial);
Engel v. Vitale, 370 U.S. 421, 430 (1962) (noncoercive nature of prayer
immaterial). For example, if Congress enacted a law providing that "all
Americans should place their religious faith in God," this explicit endorsement
of religion would almost certainly fail modern Establishment Clause
jurisprudence despite its noncoercive and nonsectarian nature. The national
motto "In God We Trust" is merely a short-hand version of such a statute. For
similar reasons, the court in Doe v. County of Montgomery, Illinois, 915 F.
Supp. 32 (C.D. Ill. 1996), held as unconstitutional a permanent metal sign over
the main entrance to the county courthouse reading "THE WORLD NEEDS GOD." The
court concluded that this display "is a promotion or endorsement of
Christianity." Id. at 3738. It is difficult to draw a meaningful distinction
between "In God We Trust" and "The World Needs God," except that the former is
both the nation's official motto and appears on every piece of currency printed
by the United States Treasury Department.

The constitutionality of the motto has been upheld against Establishment Clause
attack three times. See Gaylor v. United States, 74 F.3d 214 (10th Cir.), cert.
denied, 116 S. Ct. 1830 (1996); Aronow v. United States, 432 F.2d 242 (9th Cir.
1970); O'Hair v. Blumenthal, 462 F. Supp. 19 (W.D. Tex. 1978). In Gaylor, the
Tenth Circuit reviewed the Supreme Court's dicta regarding the motto in
Allegheny, Lynch, Schempp, and Engel and noted that it considered itself "bound
... almost as firmly as by the Court's outright holdings ...." 74 F.3d at 217.
It therefore concluded, without any true analysis under the endorsement test,
that "a reasonable observer, aware of the purpose, context, and history of the
phrase "In God we trust,' would not consider its use or its reproduction on U.S.
currency to be an endorsement of religion." Id.

n428. Marsh v. Chambers, 463 U.S. 783, 790 (1983).

n429. See Sherman, 980 F.2d at 445 ("Unless we are to treat the founders of the
United States as unable to understand their handiwork (or, worse, hypocrites
about it), we must ask whether those present at the creation deemed ceremonial
invocations of God as "establishment.' They did not."); Adams & Emmerich, supra
note 73, at 1616 ("The Founders affirmed the importance of religion to the new
republic and would have rejected the use of the Establishment Clause to
eradicate the religious leaven from public life.")

n430. See supra notes 110111 and accompanying text.

n431. It should be remembered that the Founders also had no difficulty in their
own states with blasphemy laws and Sunday Sabbath legislation to preserve the
Lord's day. See supra text accompanying notes 7881. Although the First Amendment
did not govern state conduct until the Fourteenth Amendment was enacted in 1867,
see Cantwell v. Connecticut, 310 U.S. 296 (1940), one could plausibly argue that
the original intent of the Founders would warrant finding blasphemy laws and
Lord's day legislation constitutionally permissible notwithstanding the
Establishment Clause.

n432. In the words of Chief Justice John Marshall, the Constitution was
"intended to endure for ages to come, and consequently, to be adapted to the
various crises of human affairs." McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316,
415 (1819); see id. at 407 ("we must never forget, that it is a constitution we
are expounding"); West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624,
639 (1943) (Court's task is to translate "the majestic generalities of the Bill
of Rights, conceived as part of the pattern of liberal government of the
eighteenth century, into concrete restraints on officials dealing with the
problems of the twentieth century"); see also Benjamin Cardozo, The Nature of
the Judicial Process 17 (1921) ("The great generalities of the constitution have
a content and a significance that vary from age to age.").

n433. Compare Plessy v. Ferguson, 163 U.S. 537, 544 (1896) (Fourteenth Amendment
was not intended to "abolish distinctions based on color"), with Brown v. Board
of Educ., 347 U.S. 483, 492 (1954) (examining constitutionality of segregated
schools in contemporary society, rather than turning the clock back to the time
of enactment of the Fourteenth Amendment). It is noteworthy that one week after
Congress enacted the Fourteenth Amendment, it adopted legislation providing for
segregated schools in the District of Columbia. See Marsh, 463 U.S. at 814 n.30
(Brennan, J., dissenting). If the Supreme Court had applied in Brown the same
sort of rigid originalist inquiry it later applied in Marsh, segregated schools
could still be a staple of American life.

n434. See Loving v. Virginia, 388 U.S. 1 (1967) (holding unconstitutional

miscegenation statutes despite their prevalence in America since colonial
times).

n435. Compare Goesaert v. Cleary, 335 U.S. 464 (1948) (rejecting constitutional
attack on state law restricting bartender's license to only certain class of
women), and Hoyt v. Florida, 368 U.S. 57 (1961) (holding constitutional jury
selection system in which women were not called unless they registered for jury
service), with Reed v. Reed 404 U.S. 71 (1971) (striking state preference for
appointment of male estate administrators), Frontiero v. Richardson, 411 U.S.
677 (1973) (striking discriminatory state insurance benefits program), Taylor v.
Louisiana, 419 U.S. 522 (1975) (holding unconstitutional long-standing barrier
excluding women from jury service), and Craig v. Boren, 429 U.S. 190 (1976)
(striking discriminatory alcoholic beverages statute).

n436. See Sedition Act, ch. 74, 1 Stat. 596 (1798).

n437. See Norman Dorsen & Charles Sims, The Nativity Scene Case: An Error in
Judgment, 1985 U. Ill. L. Rev. 837, 849 (footnotes omitted):

The Lynch Court's reliance on the first Congress's chaplaincy is in striking

contrast to the Court's celebrated refusal in Brown v. Board of Education to be
bound by the 65th Congress's attitude to segregated schools, or, in New York
Times v. Sullivan, to the first Congress's attitude to the alien and sedition
acts.

See also Loewy, supra note 28, at 1056 (footnotes omitted):

In Marsh the Court justified legislative (and inferentially judicial) prayer by

relying on the contemporaneous passage in 1789 of the first amendment and a
congressional act to pay chaplains. For a variety of reasons detailed by Justice
Brennan, one cannot derive much mileage from such contemporaneous conduct. Most
significantly, such reliance would have led to upholding the Alien and Sedition
Acts and segregated public schools.

See also Norman Dorsen, The Religion Clauses and Nonbelievers, 27 Wm. & Mary L.
Rev. 863, 86768 (1986) (footnotes omitted); Laycock, supra note 404, at 49
(referring to examples cited above and opining "reliance on post-ratification
practice .... lets the behavior of government officials control the meaning of
the Constitution, when the whole point is for the Constitution to control the
behavior of government officials."):

If one considers the equal protection clause of the Fourteenth Amendment, one
finds no historical evidence that it was designed to protect women, aliens, or
extramarital children; yet the Supreme Court applies heightened scrutiny to
legislation that discriminates against these groups because evolving views of
equality, consistent with the constitutional text and with the purposes of the
equal protection clause, demand it.

It is arguable that the case in favor of an orginalist interpretation of the

Establishment Clause is even weaker than the case for an originalist
interpretation of the Fourteenth Amendment: at the time that amendment was
adopted, the female and African-American segments of the population were similar
in size to what they are today. In contrast, the non-Christian population has
grown dramatically over the last 227 years. Compare supra note 72 and
accompanying text with supra note 396.

n438. Compare McGowan v. Maryland, 366 U.S. 420, 438 (1961) (recognizing that
Madison, in co-authoring Virginia's Declaration of Rights, did not believe
Virginia's Sunday labor prohibitions inconsistent with that declaration), with
id. at 444 (observing that Sunday closing laws had evolved such that "as
presently written and administered, most of them, at least, are of a secular
rather than of a religious character, and that presently they bear no
relationship to establishment of religion as those words are used in the
Constitution of the United States").

n439. See Laycock, supra note 369, at 91920, 923:

Congress cannot impose civil disabilities on non-Protestants or ban blasphemy

against the Trinity just because the Framers did it. It is no more able to
endorse the predominant religion just because the Framers did it. Our task is
not to perpetuate the Framers' blind spots, but to implement their vision.
See also Michael v. McConnell, On Reading the Constitution, 73 Cornell L. Rev.
359, 362 (1988) ("Unless we can articulate some principle that explains why
legislative chaplains might not violate the establishment clause, and
demonstrate that that principle continues to be applicable today, we cannot
uphold a practice that so clearly violates fundamental principles we recognize
under the clause."); cf. Alexander M. Bickel, The Original Understanding and the
Segregation Decision, 69 Harv. L. Rev. 1, 59, 65 (1955) (noting that framers of
Fourteenth Amendment did not intend for that amendment to end segregation, but
that Brown was correctly decided in view of "the moral and material state of the
nation in 1954, not 1866").

n440. See supra notes 7273 and accompanying text.

n441. See supra notes 7681 and accompanying text.

In 1791, almost no one thought that government support of Protestantism was

inconsistent with religious liberty, because almost no one could imagine a more
broadly pluralist state.... The exclusion of non-Protestants from pronouncements
of religious liberty was not nearly so thorough or so cruel as the exclusion of
slaves from pronouncements that all men were created equal, but both blind spots
were species of the same genus.

Laycock, supra note 369, at 91819.

The discrepancy between the widespread conviction of late eighteenth-century

Americans that government possessed no power in matters of religion and the
persistent interference of government in religious affairs arose out of the
cultural and social context of the time. Americans enunciated their Church-State
principles within a framework wherein Protestant Christianity and American
culture intertwined. After a century and a half of colonial settlement in which
the overwhelming majority of citizens were Protestant, a contemporary would in
many instances have been hard put to define where Protestantism ended and
secular life began.

Customs like days of prayer and thanksgiving appeared not so much matters of
religion as part of the common coin of civilized living. Sabbath laws enjoyed
widespread support and were so little the subject of dissent that citizens never
even felt challenged to think how those laws might impose a particular religious
viewpoint.

Curry, supra note 72, at 218; id. at 221 ("[A] country wherein eleven of
thirteen states restricted office holding to Christians or Protestants hardly
envisaged Catholicism or Judaism, not to mention Mohammedanism or any
non-Christian group, as part of the "religion' to be promoted and encouraged
either in the states or the Northwest Territory.").

n442. See 1994 Statistical Abstract, supra note 396, at 70 (as of 1991, 56% of
Americans were Protestant, 25% were Catholic, 2% were Jewish, 6% belonged to
other religions, and 11% had no religious preference); Blackman, supra note 15,
at 341 n.165 (four to five million Buddhists live in America (citing William K.
Stevens, U.S. Woman Is Named Reborn Buddhist Saint, N.Y. Times, Oct. 26, 1988,
at A20)); Jeffrey L. Sheler, Spiritual America, U.S. News & World Rep., Apr. 4,
1994, at 48, 49 (5% of Americans do not believe in God or a universal spirit);
Smith, supra note 26, at 987 n.166 (1200 religions in America); Bureau of the
Census, U.S. Dep't of Commerce, POPClock Projection (visited Aug. 5, 1996)
<http://www.census.gov/cgi-bin/popclock> (current estimated American population
of 265,431,233). It is highly likely that non-Christians will comprise an even
larger percentage of the American population in years ahead. The Census Bureau
projects that by 2050, over 10% of the American population of nearly 400 million
will be comprised of those of Asian or Pacific Islander origin, the vast
majority of which are members of the Buddhist religion or other Eastern
religions or have no religious affiliations. See Jennifer Cheeseman Day,
National Population Projections in Bureau of the Census, U.S. Dep't of Commerce,
Population Profile of the United States 1995, at 9 (July 1995).

n443. See County of Allegheny v. ACLU, 492 U.S. 573, 627 (1989) (O'Connor, J.,
concurring):

We live in a pluralistic society. Our citizens come from diverse religious

traditions or adhere to no particular religious beliefs at all. If government is
to be neutral in matters of religion, rather than showing either favoritism or
disapproval towards citizens based on their personal religious choices,
government cannot endorse the religious practices and beliefs of some citizens
without sending a clear message to nonadherents that they are outsiders or less
than full members of the political community.

n444. Our religious composition makes us
our forefathers .... In the face of such
have been objectionable to no one in the
be highly offensive to many persons, the
alike.
a vastly more diverse people than were
profound changes, practices which may
time of Jefferson and Madison may today
deeply devout and the nonbelievers

School Dist. of Abington Township v. Schempp, 374 U.S. 203, 24041 (1963)
(Brennan, J., concurring); see Adams & Emmerich, supra note 73, at 1666 ("The
Founders' theistic understanding of religion proves inadequate in
twentieth-century America because it is underinclusive, failing to account for
nontheistic religions such as Buddhism and Taoism.").

n445. Cord, supra note 75, at 165. Conservative scholar Stephen L. Carter
agrees: "The original understanding may no longer bind us because contemporary
reality is so sharply discontinuous with the world of the Founders.... In
particular, since World War II, Americans have come to accept religious
pluralism with a sincerity that the Founders could not have envisioned." Stephen
L. Carter, The Culture of Disbelief: How American Law and Politics Trivialize
Religious Devotion 119 (1993) (footnotes omitted).

n446. Oliver Wendell Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 469
(1897). There are two normative visions of the Establishment Clause ancillary to
the original intent argument addressed above that space limitations would not
permit me to address in this Article. The first is that the Establishment Clause
proscribes only those practices in which the government prefers one religion
over another. Chief Justice Rehnquist has been the most ardent proponent of this
"non-preferentialist" theory. See Wallace v. Jaffree, 472 U.S. 38, 91114 (1985)
(Rehnquist, J., dissenting). If accepted, it would provide a constitutional
basis for some (including the judicial invocation, National Day of Prayer,
Pledge, and motto) - but not all (especially not sectarian legislative and
inaugural prayers, "in the year of our Lord," and the Christmas holiday) - of
the practices I have addressed in this Article. The second is that the
Establishment Clause proscribes only those practices in which the government
coerces religious practice or belief. Justice Kennedy has been the chief
proponent of this coercion theory. See Allegheny, 492 U.S. at 65963 (Kennedy,
J., concurring in the judgment in part and dissenting in part). If accepted,
this theory would also provide a constitutional basis for some (including
legislative and inaugural prayers, the judicial invocation, "in the year of our
Lord," the Thanksgiving and Christmas holidays, the National Day of Prayer, and
the motto) - but again not all (especially not public officer and courtroom
oaths and recitation of the Pledge) - of the practices I have addressed in this
Article. For excellent responses to these theories, see Laycock, supra note 369;
Laycock, supra note 404.

n447. Lynch v. Donnelly, 465 U.S. 668, 693 (1984) (O'Connor, J., concurring).

n448. Marsh v. Chambers, 463 U.S. 783, 792 (1983).

n449. Lynch, 465 U.S. at 71617 (Brennan, J., dissenting) (citation omitted). In
language nearly identical to Chief Justice Burger's Marsh opinion above, Justice
Brennan had previously articulated in Schempp that "we have simply interwoven
the motto so deeply into the fabric of our civil polity that its present use may
well not present that type of involvement which the First Amendment prohibits."
Schempp, 374 U.S. at 303 (Brennan, J., concurring); see also Engel v. Vitale,
370 U.S. 421, 450 (1962) (Stewart, J., dissenting) (referring to "deeply
entrenched and highly cherished spiritual traditions of our Nation - traditions
which come down to us from ... almost two hundred years ago").

n450. In Schempp, Justice Brennan had also proposed a slightly different

acknowledgement rationale, one which discounted the religious content of
ceremonial deism:

The reference to divinity in the revised pledge of allegiance, for example, may
merely recognize the historical fact that our Nation was believed to have been
founded "under God." Thus reciting the pledge may be no more of a religious
exercise than the reading aloud of Lincoln's Gettysburg Address, which contains
an allusion to the same historical fact.

Schempp, 374 U.S. at 304 (Brennan, J., concurring). This rationale is squarely
belied by the legislative history of the Pledge amendment and of similar
enactments legislating practices I have labeled ceremonial deism. They were
never intended to merely acknowledge the historical role God and religion have
played in the founding of the nation. See Loewy, supra note 28, at 105960
(refuting this rationale).

n451. Schempp, 374 U.S. at 265 (Brennan, J., concurring). See supra note 273 for
other cases embracing this principle.

n452. See Marsh, 463 U.S. at 79798 (Brennan, J., dissenting):

Whatever secular functions legislative prayer might play - formally opening the
legislative session, getting the members of the body to quiet down, and imbuing
them with a sense of seriousness and high purpose - could so plainly be
performed in a purely nonreligious fashion that to claim a secular purpose for
the prayer is an insult to the perfectly honorable individuals who instituted
and continue the practice.

n453. See supra notes 246427 and accompanying text.

n454. See Rostein, supra note 28, at 179293 (footnote omitted):

Lincoln's "of the people, by the people, for the people" formulation from the
Gettysburg Address would make an appropriate and stirring national motto to be
placed on currency. An expansion of the "establish justice" language from the
preamble to the Constitution might serve as a dignifying opening to court
sessions. Readings from other political documents hallowed throughout our
history might solemnize legislative proceedings as they convene.

n455. Indeed, in his Allegheny dissent, Justice Kennedy lambasted Justice

O'Connor's solemnization rationale, at least concerning legislative prayer:
I fail to see why prayer is the only way to convey these messages; appeals to
patriotism, moments of silence, and any number of other approaches would be as
effective, were the only purposes at issue the ones described by the Lynch
concurrence. Nor is it clear to me why "encouraging the recognition of what is
worthy of appreciation in society" can be characterized as a purely secular
purpose, if it can be achieved only through religious prayer. No doubt prayer is
"worthy of appreciation," but that is most assuredly not because it is secular.
Even accepting the secular-solemnization explanation at face value, moreover, it
seems incredible to suggest that the average observer of legislative prayer who
either believes in no religion or whose faith rejects the concept of God would
not receive the clear message that his faith is out of step with the political
norm. Either the endorsement test must invalidate scores of traditional
practices recognizing the place religion holds in our culture, or it must be
twisted and stretched to avoid inconsistency with practices we know to have been
permitted in the past, while condemning similar practices with no greater
endorsement effect simply by reason of their lack of historical antecedent.
Neither result is acceptable.

County of Allegheny v. ACLU, 492 U.S. 573, 67374 (1989) (Kennedy, J., concurring
in the judgment in part and dissenting in part) (footnote omitted); see Timothy
L. Hall, Sacred Solemnity: Civic Prayer, Civil Communion, and the Establishment
Clause, 79 Iowa L. Rev. 35, at 61 n.138 (1993) ("She [Justice O'Connor] did not
explain, nor can one readily imagine an explanation, why other secular rituals
and mottoes could not serve to solemnize public occasions or express confidence
in the future ...."). Justice Kennedy would abandon the endorsement test, rather
than the scores of practices it would invalidate; although I agree with Justice
Kennedy entirely in his assessment of the effect of the endorsement test, I
disagree that the results it would cause are so unacceptable as to require
abandonment of the test.

n456. Justice O'Connor's assertion that intertwining religion with public events
and activities serves "in the only ways reasonably possible in our culture ...
[to] encourage the recognition of what is worthy of appreciation in society,"
Lynch v. Donnelly, 465 U.S. 668, 693 (1984) (O'Connor, J., concurring), is
particularly troubling because it is so inherently inconsistent with her own
endorsement test. This assertion fails utterly to recognize that to a large
segment of the American population, not only does intertwining religion not
serve to encourage "what is worthy of appreciation in society," but it actually
serves to make that segment feel like outsiders in their own political
community. See Smith, supra note 269, at 303 n.147 (noting that "in unguarded
moments, even Justice O'Connor herself seems instinctively to reject her own
approach," and referring to ceremonial deism as the principal example).

n457. "No one acquires a vested or protected right in violation of the

Constitution by long use, even when that span of time covers our entire national
existence and indeed predates it." Walz v. Tax Comm'n of New York, 397 U.S. 664,
678 (1970). What is surprising about Justice O'Connor's support of this
acknowledgement rationale is that she herself squarely embraces this premise:
"Historical acceptance of a practice does not in itself validate that practice
under the Establishment Clause if the practice violates the values protected by
that Clause, just as historical acceptance of racial or gender based
discrimination does not immunize such practices from scrutiny under the
Fourteenth Amendment." Allegheny, 492 U.S. at 630 (O'Connor, J., concurring).
But somehow, combining the "nonsectarian nature" of ceremonial deism with its
"longstanding existence" convinces Justice O'Connor that "those particular
practices, despite their religious roots, do not convey a message of endorsement
of particular religious beliefs." Id. at 631. This end-run around her own
endorsement test is unpersuasive. Indeed, under this analysis, the nonsectarian
school prayer at issue in Engel would have passed constitutional muster inasmuch
as similar school prayers had been part of America's educational system since
the emergence of public schools. See Engel v. Vitale, 370 U.S. 421 (1962); supra
notes 99106 and accompanying text.

n458. Allegheny, 492 U.S. at 60405. Were it otherwise, in view of this heritage,
the acknowledgement rationale would quickly "gut the core of the Establishment
Clause." Id. at 604.

n459. The respondents in Engel made precisely the same argument: that school
prayer was deeply ingrained in the nation's spiritual heritage and as such did
not violate the Establishment Clause. See Engel, 370 U.S. at 425. By the logic
the Court has used to protect ceremonial deism from invalidation, school prayer
could pass constitutional muster as well.

n460. See Marsh v. Chambers, 463 U.S. 783, 78790 (1983) (noting linkage between
established churches and the practices of legislative prayer and the judicial
invocation). For instance, the school prayers that the Court held
unconstitutional in Engel and Schempp were direct descendants of an American
educational system that began with colonial religious schools beholden to
established churches. See Donald E. Boles, The Bible, Religion, and the Public
Schools 46 (3d ed. 1965). When public education emerged in the mid-nineteenth
century, not surprisingly, school boards were comprised of ministers who
injected religion into public education paralleling that in the private schools.
See supra text accompanying note 102. School prayer was but one vestige of the
early American private religious school model that was retained until the Court
declared it unconstitutional in Engel and Schempp. See Engel, 370 U.S. at 42425;
School Dist. of Abington Township v. Schempp, 374 U.S. 203, 225, 23839 (1963);
supra notes 99106 and accompanying text.

n461. See Lynch, 465 U.S. at 716 (Brennan, J., dissenting) (national motto "In
God We Trust" and Pledge amendment are "protected from Establishment Clause
scrutiny chiefly because they have lost through rote repetition any significant
religious content"); see also Marsh, 463 U.S. at 818 (Brennan, J., dissenting)
(court cry, motto, Pledge amendment, etc. "have lost any true religious
significance").

n462. See Allegheny, 492 U.S. at 631 (O'Connor, J., concurring) (these practices
"have largely lost their religious significance over time"); Schempp, 374 U.S.
at 30304 (Brennan, J., concurring) ("This general principle might also serve to
insulate the various patriotic exercises and activities used in the public
schools and elsewhere which, whatever may have been their origins, no longer
have a religious purpose or meaning."); see also Tribe, supra note 27, at 129596
("even from the minority perspective, some such practices should be deemed to
have outgrown their religious births").

n463. See Lynch, 465 U.S. at 710 (Brennan, J., dissenting) (citing McGowan v.
Maryland, 366 U.S. 420 (1961)):

Because it is clear that the celebration of Christmas has both secular and
sectarian elements, it may well be that by taking note of the holiday, the
government is simply seeking to serve the same kinds of wholly secular goals -
for instance, promoting goodwill and a common day of rest - that were found to
justify Sunday Closing laws in McGowan v. Maryland.

See also Allegheny, 492 U.S. at 631 (O'Connor, J., concurring) (asserting that
Thanksgiving "is now generally understood as a celebration of patriotic values
rather than particular religious beliefs").
n464. See McGowan, 366 U.S. at 44445; supra notes 294298 and accompanying text.

n465. See supra notes 1323 and accompanying text.

n466. Lynch, 465 U.S. at 675 (quoting Zorach v. Clauson, 343 U.S. 306, 313
(1952)); Marsh, 463 U.S. at 792 (same).

n467. See generally Stokes & Pfeffer, supra note 72, at 37882 (describing
national reaction to two Supreme Court school prayer decisions as varying from
being "unusual in intensity" to being "generally favorable"). One can also get a
sense of the likely reaction from a rally for presidential candidate Pat
Robertson during the 1988 presidential campaign. Prior to Robertson's speech, a
supporter made these warm-up remarks:

"How many of you remember the pledge of allegiance?" he asked. "There are many
places where it isn't even said anymore because it mentions God." (Some hisses
and boos from the crowd.) Not surprisingly, nearly everyone in the audience did
remember, and with the warm-up man leading the way, the crowd dutifully recited
the pledge, right hands over hearts.

Jack W. Germond & Jules Witcover, Whose Broad Stripes and Bright Stars: The
Trivial Pursuit of the Presidency 198890 (1989); see also Schempp, 374 U.S. at
303 (Brennan, J., concurring) ("It is not that the use of ["In God We Trust']
can be dismissed as "de minimis' - for I suspect there would be intense
opposition to the abandonment of that motto."); Blackman, supra note 15, at 312
("Removal of "In God We Trust' from our coins ... would almost assuredly provoke
the anger and rage of religious people for an end that does not seem worth
it."); Esbeck, supra note 159, at 604 n.82 ("One could safely predict that there
would be a general outcry - even vigorous resistance - if the Supreme Court
declared unconstitutional governmental references to God.").

n468. Accord Crabb, supra note 389, at 535; Jill M. Misage, Note, Refusing to
Abandon a Real Lemon of a Test: North Carolina Civil Liberties Union v.
Constangy, 28 Wake Forest L. Rev. 775, 806 (1993).

n469. See, e.g., Marsh, 463 U.S. at 795 (""It is of course true that great
consequences can grow from small beginnings, but the measure of constitutional
adjudication is the ability and willingness to distinguish between real threat
and mere shadow.'") (quoting Schempp, 374 U.S. at 308 (Goldberg, J.,
concurring)); Van Zandt v. Thompson, 839 F.2d 1215, 1222 (7th Cir. 1988)
(legislative prayer room "at most a de minimis advancement of or benefit to
religion"); Levy, supra note 28, at 184 (labeling ceremonial deism as "trifling
significance"); Blackman, supra note 15, at 312 ("To borrow an expression from
basketball, "No harm, no foul.'"); Sullivan, supra note 28, at 207 n.59
(labeling "In God We Trust" "a de minimis endorsement," although recognizing
that a "closer question" is presented by the Pledge amendment). Despite its
popularity with commentators, this argument has not won much favor with members
of the Supreme Court. See, e.g., Lee v. Weisman, 505 U.S. 577, 594 (1992)
(rejecting de minimis argument in commencement prayer case); Schempp, 374 U.S.
at 303 (Brennan, J., concurring) ("it is not that the use of ["In God We Trust']
can be dismissed as "de minimis'").

n470. Confessing that these proclamations technically violated the First

Amendment, Madison pleaded "the legal aphorism de minimis non curat lex."
Elizabeth Fleet, Madison's "Detached Memoranda," 3 Wm. & Mary Q. 554, 559
(1946), reprinted in 5 The Founders' Constitution 104 (Philip B. Kurland & Ralph
Lerner eds., 1987).

n471. Schempp, 374 U.S. at 225; see Stone v. Graham, 449 U.S. 39, 42 (1980) (per
curiam) (quoting Schempp language); Commission for Pub. Educ. & Religious
Liberty v. Nyquist, 413 U.S. 756, 797 n.56 (1973) (same); Jager v. Douglas
County Sch. Dist., 862 F.2d 824, 832 (11th Cir. 1989) (same); Friedman v. Board
of County Comm'rs, 781 F.2d 777, 781 n.3 (10th Cir. 1985) (same); see also Engel
v. Vitale, 370 U.S. 421, 436 (1962) (quoting Madison's Memorial and Remonstrance
against Religious Assessments for proposition that ""it is proper to take alarm
at the first experiment on our liberties'"); Bonham v. District of Columbia
Library Admin., 989 F.2d 1242, 1245 (D.C. Cir. 1993) (rejecting proposition that
Establishment Clause permits de minimis exception); Hall v. Bradshaw, 630 F.2d
1018, 1021 (4th Cir. 1980) ("No de minimis exception is tolerable.").

n472. See supra notes 1327 and accompanying text. "A de minimis exception to
Establishment Clause doctrine for civic religion generally would provide no
constitutional defense against the steady historical progression from days of
thanksgiving and prayer to sacred coinage to solemn pledge to ... what?" Hall,
supra note 455, at 51.

n473. Cammack v. Waihee, 673 F. Supp. 1524, 1539 (D. Haw. 1987), aff'd, 932 F.2d
765 (9th Cir. 1991).

n474. See Smith v. Lindstrom, 699 F. Supp. 549, 571 (W.D. Va. 1988); Levy, supra
note 28, at 177. For example, at least one modern judge has found that there is
at most a de minimis violation of the Establishment Clause when secondary school
administrators hang a portrait of Jesus Christ in the school hallways. See
Washegesic v. Bloomingdale Pub. Schs., 33 F.3d 679, 685 (6th Cir. 1994) (Guy,
J., concurring) ("For heaven's sake, stay out of the courthouse and quit
trivializing the Constitution!"). Another judge found compelled chapel
attendance in the military to be at most a de minimis endorsement. See Anderson
v. Laird, 466 F.2d 283, 307 (D.C. Cir. 1972) (MacKinnon, J., dissenting). And at
least one state court in the 1960s found school prayer to be at most a de
minimis endorsement. See Chamberlin v. Dade City Bd. of Pub. Instruction, 143
So.2d 21, 32 (Fla. 1962):

To say that the vast majority of students in the Dade County public school
system are to be foreclosed of the privilege of living a few moments each day
with the words of the Bible, the greatest of all literature, or of observing in
the classroom, if such were possible, the magnificent painting of the Last
Supper, or of listening to Caruso's recording of Adeste Fidelis, because a
minority might suffer some imagined and nebulous confusion, is to approach the
ridiculous.

It appears that what is de minimis is in the eye of the beholder.

n475. See Sullivan, supra note 28, at 207 ("Majority practices are myopically
seen by their own practitioners as uncontroversial ....").

n476. "These government religious ceremonials are simply modest establishments

that do not last very long and seem harmless to the mainstream. But they are not
harmless to the serious nonbelievers, or to serious particularistic believers -
to unacculturated believers." Douglas Laycock, Summary and Synthesis: The Crisis
in Religious Liberty, 60 Geo. Wash. L. Rev. 841, 843 (1992).

n477. Laycock, supra note 404, at 63; see Lee v. Weisman, 505 U.S. 577, 594
(1992) ("Promulgating religion that sought to be civic or nonsectarian rather
than pertaining to one sect does not lessen the offense or isolation to
objectors. At best it narrows their number, at worst increases their sense of
isolation and affront.").

n478. Laycock, supra note 404, at 54.

n479. See Rotstein, supra note 28, at 1773 (referring to ceremonial deism as "an
accepted part of civic life" due to such practices having lost their religious
meaning through repetitive historical use).

n480. Nadine Strossen, How Much God in the Schools? A Discussion of Religion's
Role in the Classroom, 4 Wm. & Mary Bill of Rts. J. 607, 610 (1995).

n481. See Bell v. Little Axe Indep. Sch. Dist., 766 F.2d 1391 (10th Cir. 1985).

n482. See Strossen, supra note 480, at 612.

n483. See Illinois ex rel. McCollum v. Board of Educ., 333 U.S. 203 (1948).

n484. Vashti Cromwell McCollum, One Woman's Fight 95 (rev. ed. 1961) (relating
hate letters). Other letters "were not only unprintable, but unspeakable,
unwhisperable, unimaginable. Filth, bitterness, sadism, hatred . ..." Id.

n485. See Melissa Merlie, Champaign Woman Recalls Landmark Lawsuit, The
News-Gazette (Champaign, Illinois), June 18, 1995, at A1. Similarly, the family
of Deborah Weisman, the eighth-grader who challenged the graduation prayers in
Lee, was harassed by hate mail and death threats. See Strossen, supra note 480,
at 617. A family whose pending lawsuit challenges Protestant fundamentalist
prayers over the intercom in a Mississippi public school was the target of bomb
threats; the children were taunted and called devil worshippers. See Reuters
News Service, Mississippi Mom Calls Gingrich Idea "Completely Nuts," June 18,
1995, available in LEXIS, News Library, Wires File. The case is Herdahl v.
Pontotoc County Sch. Dist., 887 F. Supp. 902 (N.D. Miss. 1995) (granting
preliminary injunction against such prayers). In a similar case, an
eleven-year-old Jewish child was condemned by his peers as a Christ killer
because he did not appear to pray during a moment of silence. See Walter v. West
Virginia Bd. of Educ., 610 F. Supp. 1169, 117273 (S.D. W. Va. 1985). In still
another case, a Texas girl, who refused to participate in the Lord's Prayer her
high school basketball coach required the team to recite was taunted by fellow
students who asked "Aren't you a Christian?" Similar treatment came from
spectators. The girl's history teacher called her "a little atheist" during a
class lecture. See Doe v. Duncanville Indep. Sch. Dist., 994 F.2d 160, 16263
(5th Cir. 1993); see also Stephen L. Pevar, Public Schools Must Stop Having
Christmas Assemblies, 24 St. Louis U. L.J. 327, 331 (1980) (describing call to
radio talk show in which caller stated that the attorney's client, who was
challenging public school Christmas traditions, "lives in a Christian society
[and] should expect to find Christian music in the public schools[, or m]aybe he
should move his family to Russia").

Another indication of the intense and often brutal ostracism inherent in these
lawsuits is the willingness of courts to allow plaintiffs to pursue such claims
pseudonymously. See, e.g., Doe v. Duncanville Indep. Sch. Dist., 70 F.3d 402
(5th Cir. 1995); Doe v. Small, 964 F.2d 611 (7th Cir. 1992); Doe v. City of
Clawson, 915 F.2d 244 (6th Cir. 1990); Doe v. County of Montgomery, Illinois,
915 F. Supp. 32 (C.D. Ill. 1996); ACLU v. Eckels, 589 F. Supp. 222 (S.D. Tex.
1984) (individual plaintiffs were Jane Doe and John Roe).

n486. See supra notes 289293, 313319, 397, 423, and 427 and accompanying text.

n487. Strossen, supra note 480, at 616.

n488. Such reticence "may bespeak only the hesitancy of religious minorities to
come forward to complain about the recognition given to the majority religion."
Fox v. City of Los Angeles, 587 P.2d 663, 670 (Cal. 1978).
n489. See West Virginia Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943):

The very purpose of a Bill of Rights was to withdraw certain subjects from the
vicissitudes of political controversy, to place them beyond the reach of
majorities and officials and to establish them as legal principles to be applied
by the courts. One's right to ... freedom of worship ... and other fundamental
rights may not be submitted to vote; they depend on the outcome of no elections.

See also Friedman v. Board of County Comm'rs, 781 F.2d 777, 782 (10th Cir. 1985)
("The comfort of the majority is not the main concern of the Bill of Rights.").

n490. Developments, supra note 28, at 1656. Once again, the experience of people
of color and women is illustrative. See supra notes 433435, 457 and accompanying
text.

n491. See County of Allegheny v. ACLU, 492 U.S. 573, 663 (1989) (Kennedy, J.,
dissenting) (footnote omitted):

Government accommodation ... has marked our history from the beginning. It
cannot be disputed that government, if it chooses, may participate in sharing
with its citizens the joy of the holiday season, by declaring public holidays,
installing or permitting festive displays, sponsoring celebrations and parades,
and providing holiday vacations for its employees. All levels of our government
do precisely that.

See also id. at 663 n.2 (Kennedy, J., dissenting) (further explaining
accommodation rationale); Karst, supra note 12, at 521 (embracing accommodation
rationale for passive, noncoercive religious symbols).

n492. Lynch v. Donnelly, 465 U.S. 668, 710 (1984) (Brennan, J., dissenting); see
also id. at 715 (Brennan, J., dissenting) (offering further explanation for why
accommodation is consistent with the Establishment Clause).

n493. See supra notes 189191 and accompanying text.

n494. Lee v. Weisman, 505 U.S. 577, 629 (1992) (Souter, J., concurring); see
supra text accompanying note 274. Significantly, Michael McConnell, one of the
leading scholars on this subject, rejects the "public square" type of
accommodation embraced by Justice Kennedy, see supra note 491, in his conception
of accommodation:

There is no legitimate claim for accommodation when the obstacles to religious

exercise are not caused by the government and the failure of the government to
accommodate would not constitute unequal treatment....

....Accommodation does not include government action that acknowledges or

expresses the prevailing religious sentiments of the community, such as the
display of a religious symbol on public property or the delivery of a prayer at
public ceremonial events. Such acknowledgements do not leave the decision about
religious practice to the individual or group, but rather serve as a social or
collective expression of religious ideas.

Michael W. McConnell, Accommodation of Religion: An Update and a Response to the

Critics, 60 Geo. Wash. L. Rev. 685, 687 (1992). Others have had similar
reactions:

The central flaw in the public sphere accommodation rationale is that it

conceives of "religion" as a unitary cluster of faiths, such that accommodation
of certain creeds is considered to accommodate "religion" generally and to
enhance the religious freedom of all. Such a conception ignores the diversity of
faiths in contemporary society; it further ignores the divergence in
perspectives between adherents and nonadherents of accommodated faiths, for what
to the "accommodated" majority is merely a recognition of its beliefs or an
opportunity to express its beliefs may, to nonadherents, be both a vivid
reminder that their beliefs are not favored and a source of pressure to conform
or be excluded.

Developments, supra note 28, at 1674.

n495. Allegheny, 492 U.S. at 601 n.51.

n496. The classic examples of governmental institutions that do burden religious

practices, thereby allowing for accommodation, are prisons, hospitals, and the
military, where one's ability to seek out religion is necessarily restricted.
See, e.g., Cruz v. Beto, 405 U.S. 319 (1972) (per curiam) (prison); Carter v.
Broadlawns Med. Ctr., 857 F.2d 448 (8th Cir. 1988) (hospital with respect to
psychiatric patients); Katcoff v. Marsh, 755 F.2d 223 (2d Cir. 1985) (military).

n497. If Christmas was not a government-declared holiday, most governmental

workplaces would probably still remain closed on December 25. But they would be
closed because of the impracticality of producing labor on that day, rather than
because the government has decided to bestow its endorsement on a religious
holiday significant to only some American citizens.

n498. Allegheny, 492 U.S. at 601 n.51.

n499. School Dist. of Abington Township v. Schempp, 374 U.S. 203, 226 (1963).

n500. Allegheny, 492 U.S. at 674 (Kennedy, J., dissenting).

Document 94 of 436.

Search Terms: civil religion

To narrow your search, please enter a word or phrase:

Copyright� 2000, LEXIS-NEXIS, a division of Reed Elsevier Inc. All Rights

Reserved.