Monday, June 14, 2004

O'Connor's Disgrace Meanwhile, Justice O'Connor weighed in with a lengthy and pretentious bit of nonsense in defense of the claim that the phrase “Under God” was an instance of “ceremonial deism”. Even she, however, concedes that it is a close call:

This case requires us to determine whether the appearance of the phrase “under God” in the Pledge of Allegiance constitutes an instance of such ceremonial deism. Although it is a close question, I conclude that it does, based on my evaluation of the following four factors.

As an example of O'Connor's fatuousness, consider the following:

Facially religious references can serve other valuable purposes in public life as well. Twenty years ago, I wrote that such references “serve, 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.” Lynch, supra, at 692-693 (O'Connor, J., concurring). For centuries, we have marked important occasions or pronouncements with references to God and invocations of divine assistance. Such references can serve to solemnize an occasion instead of to invoke divine provenance. The reasonable observer discussed above, fully aware of our national history and the origins of such practices, would not perceive these acknowledgments as signifying a government endorsement of any specific religion, or even of religion over non-religion.

First off, it is sheer lunacy to argue that an invocation of God is not an endorsement of religion over non-religion. A request that God bless some particular event makes no sense unless it is based on the belief that God actually exists and occasionally blesses things. Such invocations of God are not meaningless phrases intended to indicate that what follows is meant to be very solemn.

Second, it is beyond me how publicly requesting God's blessing or asserting his existence can be construed as a way of encouraging the recognition of what is worthy of appreciation in society. And there are considerably more direct ways of expressing our confidence in the future than some vague reference to God.

Third, it is not clear to me how a “facially religious reference” is different from an invocation of divine provenance. And surely the ability of a religious reference to solemnize an event will depend on the religious beliefs of the person hearing the reference. To an atheist such an invocation is likely to trivialize an event. Solemnity can be achieved is many ways; to argue that religious references are required for such things shows a profound lack of imagination, to put it kindly.

O'Connor follows this bit of legal brilliance with the following:

There are no de minimis violations of the Constitution--
no constitutional harms so slight that the courts are obliged to ignore them. Given the values that the Establishment Clause was meant to serve, however, I believe that government can, in a discrete category of cases, acknowledge or refer to the divine without offending the Constitution. This category of “ceremonial deism” most clearly encompasses such things as the national motto (“In God We Trust”), religious references in traditional patriotic songs such as the Star-Spangled Banner, and the words with which the Marshal of this Court opens each of its sessions (“God save the United States and this honorable Court”). See Allegheny, 492 U. S., at 630 (opinion of O'Connor, J.). These references are not minor trespasses upon the Establishment Clause to which I turn a blind eye. Instead, their history, character, and context prevent them from being constitutional violations at all.

Yeah. And it's not about the money.

Of course, minor trespasses upon the Establishment Clause are exactly what those references are. “Ceremonial Deism” is a term concocted for the sole purpose of allowing such religious references to pass constitutional muster nonetheless.

Incidentally, I wonder how O'Connor squares her acceptance of acknowledging the divine with her earlier statement that such invocations do not endorse religion over non-religion.

O'Connor then gives four factors that must be weighed in determining whether your particular religious observance can plausibly be passed off as ceremonial deism:

The constitutional value of ceremonial deism turns on a shared understanding of its legitimate nonreligious purposes. That sort of understanding can exist only when a given practice has been in place for a significant portion of the Nation's history, and when it is observed by enough persons that it can fairly be called ubiquitous.

This from a section entitled History and Ubiquity. Translation: As long as your Establishment Clause violation has escaped judicial notice for a long enough period of time, we'll just let it slide.

In an attempt to circumvent this obvious implication of her argument, O'Connor writes:

It cannot be doubted that “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. Yet an unbroken practice . . . is not something to be lightly cast aside.” Walz v. Tax Comm'n of City of New York, 397 U. S. 664, 678 (1970). And the history of a given practice is all the more relevant when the practice has been employed pervasively without engendering significant controversy. In Lynch, where we evaluated the constitutionality of a town Christmas display that included a creche, we found relevant to the endorsement question the fact that the display had “apparently caused no political divisiveness prior to the filing of this lawsuit” despite its use for over 40 years.

So the constitutionality of a practice depends at least in part on how long it takes to find someone willing to go through the expense and inconvenience (not to mention public ostracism) of challenging it. Brilliant.

The next section is entitled Absence of Worship or Prayer:

“[O]ne of the greatest dangers to the freedom of the individual to worship in his own way [lies] in the Government's placing its official stamp of approval upon one particular kind of prayer or one particular form of religious services.” Engel v. Vitale, 370 U. S. 421, 429 (1962). Because of this principle, only in the most extraordinary circumstances could actual worship or prayer be defended as ceremonial deism.

And later:

Of course, any statement can be imbued by a speaker or listener with the qualities of prayer. But, as I have explained, the relevant viewpoint is that of a reasonable observer, fully cognizant of the history, ubiquity, and context of the practice in question. Such an observer
could not conclude that reciting the Pledge, including the phrase “under God,” constitutes an instance of worship. I know of no religion that incorporates the Pledge into its canon, nor one that would count the Pledge as a meaningful expression of religious faith. Even if taken literally, the phrase is merely descriptive; it purports only to identify the United States as a Nation subject to divine authority. That cannot be seen as a serious invocation of God or as an expression of individual submission to divine authority.

The history of the “under God” clause is that the Congress in the 1950's wanted to distinguish God-fearing America from godless Russia. That is not a secular purpose. It is ubiquitous only because so many school districts currently require it. It is the constitutionality of that practice that is at issue. In the context of the pledge it might be arguable whether the reference to God constitutes prayer or worship since God is not actually being asked to do anything. But some of O'Connor's other examples clearly doconstitutee prayer or worship.

And is O'Connor seriously arguing that when I recite the Pledge I am affirming only that it is my country, and not myself, that is under divine authority?

The next category is Absence of reference to particular religion.

“The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.” Larson v. Valente, 456 U. S. 228, 244 (1982). While general acknowledgments of religion need not be viewed by reasonable observers as denigrating the nonreligious, the same cannot be said of instances "where the endorsement is sectarian, in the sense of specifying details upon which men and women who believe in a benevolent, omnipotent Creator and Ruler of the world are known to differ." Weisman, supra, at 641 (Scalia, J., dissenting). As a result, no religious acknowledgment could claim to be an instance of ceremonial deism if it explicitly favored one particular religious belief system over another.

The Pledge complies with this requirement. It does not refer to a nation “under Jesus” or “under Vishnu,” but instead acknowledges religion in a general way: a simple reference to a generic “God.” Of course, some religions--
Buddhism, for instance--are not based upon a belief in a separate Supreme Being. See Brief for Buddhist Temples, Centers, and Organizations as Amicus Curiae at 15-16. But one would be hard pressed to imagine a brief solemnizing reference to religion that would adequately encompass every religious belief expressed by any citizen of this Nation. The phrase “under God,” conceived and added at a time when our national religious diversity was neither as robust nor as well recognized as it is now, represents a tolerable attempt to acknowledge religion and to invoke its solemnizing power without favoring any individual religious sect or belief system. (Emphasis Added)

Again, what can it possibly mean to acknowledge religion without denigrating the nonreligious? After all, it is not the mere existence of religion that is being acknowledged. It is a specific belief of Western, monotheistic religions that is being endorsed. O'Connor simply doesn't take seriously anyone who is not a member of a monotheistic religion, whether that person be atheistic or a member of some non-monotheistic religion.

Finally we come to Minimal Religious Content:

A final factor that makes the Pledge an instance of ceremonial deism, in my view, is its highly circumscribed reference to God. In most of the cases in which we have struck down government speech or displays under the Establishment Clause, the offending religious content has been much more pervasive.

So much for there being no de minimis violations of the Establishment Clause.