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Warnings and Advice from the Founding Era
"Guard against those men who make a great noise about religion,"
Source of Information:
"July 4th Oration" by John Leland, July 5, 1802. The Writings of John Leland, Edited by L.F. Greene, Arno Press &: The New York Times New York (1969) pp.260-270) Originally published as: The Writings Of The Late Elder John Leland Including Some Events In His Life, Written By Himself, With Additional Sketches &:c. By Miss L.F. Greene, Lanesboro, Mass. Printed By G.W. Wood, 29 Gold Street, New York 1845.
Document may be viewed online here http://members.tripod.com/~candst/leland5.htm
The more complete the separation of church (religion) and state (government) the better for both
June 3, 1811
To the Baptist Churches on Neal's Greek on Black Creek, North Carolina I have received, fellow-citizens, your address, approving my objection to the Bill containing a grant of public land to the Baptist Church at Salem Meeting House, Mississippi Territory. Having always regarded the practical distinction between Religion and Civil Government as essential to the purity of both, and as guaranteed by the Constitution of the United States, I could not have other wise discharged my duty on the occasion which presented itself.
Source of Information:
Letter to Baptist Churches in North Carolina, June 3, 1811. Letters And Other Writings of James Madison Fourth President Of The United States In Four Volumes Published By the Order Of Congress, Vol..II, J. B. Lippincott &: Co., Philadelphia, (1865) pp 511-512.
March 2, 1819
The civil Government, though bereft of everything like an associated hierarchy, possesses the requisite stability, and performs its functions with complete success, whilst the number, the industry, and the morality of the priesthood, and the devotion of the people, have been manifestly increased by the total separation of the church from the State.
Source of Information:
Excerpt of a letter to Robert Walsh from James Madison. MARCH 2, 1819 Letters and Other writings of James Madison, in Four Volumes, Published by Order of Congress. Vol.. III, J. B. Lippincott &: Co. Philadelphia, (1865), pp 121-126. James Madison on Religious Liberty, Robert S.Alley, Prometheus Books, Buffalo, N.Y. (1985) pp 82-83.
Strongly guarded as is the separation between religion and government in the Constitution of the United States the danger of encroachment by Ecclesiastical Bodies, may be illustrated by precedents' already furnished in their short history
Source of Information:
Excerpt from Madison's Detached Memoranda. This document was discovered in 1946 among the papers of William Cabell Rives, a biographer of Madison. Scholars date these observations in Madison's hand sometime between 1817 and 1832. The entire document was published by Elizabeth Fleet in the William and Mary Quarterly of October 1946.
July 10, 1822
Every new and successful example, therefore, of a perfect separation between the ecclesiastical and civil matters, is of importance; and I have no doubt that every new example will succeed, as every past one has done, in showing that religion and Government will both exist in greater purity the less they are mixed together
Source of Information:
Excerpt of letter to Edward Livingston from James Madison, July 10, 1822. Letters and Other writings of James Madison, in Four Volumes, Published by Order of Congress. Vol. III, J. B. Lippincott &: Co. Philadelphia, (1865), pp 273-276. James Madison on Religious Liberty, Robert S.Alley, Prometheus Books, Buffalo, N.Y. (1985) pp 82-83.
I must admit moreover that it may not be easy, in every possible case, to trace the line of separation between the rights of religion and the civil authority with such distinctness as to avoid collisions and doubts on unessential points. The tendency to a usurpation on one side or the other or to a corrupting coalition or alliance between them will be best guarded against by entire abstinence of the government from interference in any way whatever, beyond the necessity of preserving public order and protecting each sect against trespasses on its legal rights by others.
Source of Information:
Letter written by James Madison to Rev. Jasper Adams, September, 1833. Writings of James Madison, edited by Gaillard Hunt, [not sure what the volume number is but have enough information presented here to locate the letter] microform Z1236.L53, pp 484-488.
Ceremonial Deism would be unconstitutional
To the Honorable the General Assembly of the Commonwealth of Virginia
A Memorial and Remonstrance
1. Because we hold it for a fundamental and undeniable truth, "that religion or the duty which we owe to our Creator and the manner of discharging it, can be directed only by reason and conviction, not by force or violence." The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate.. . . . We maintain therefore that in matters of Religion, no man's right is abridged by the institution of Civil Society and that Religion is wholly exempt from its cognizance. True it is, that no other rule exists, by which any question which may divide a Society, can be ultimately determined, but the will of the majority; but it is also true that the majority may trespass on the rights of the minority.
2. Because Religion be exempt from the authority of the Society at large, still less can it be subject to that of the Legislative Body. . .
3. Because it is proper to take alarm at the first experiment on our liberties. We hold this prudent jealousy to be the first duty of Citizens, and one of the noblest characteristics of the late Revolution. The free men of America did not wait till usurped power had strengthened itself by exercise, and entangled the question in precedents. They saw all the consequences in the principle, and they avoided the consequences by denying the principle. We revere this lesson too much soon to forget it. 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?
4. . . . If "all men are by nature equally free and independent," all men are to be considered as entering into Society on equal conditions; as relinquishing no more, and therefore retaining no less, one than another, of their natural rights. Above all are they to be considered as retaining an "equal title to the free exercise of Religion according to the dictates of Conscience." Whilst we assert for ourselves a freedom to embrace, to profess and to observe the Religion which we believe to be of divine origin, we cannot deny an equal freedom to those whose minds have not yet yielded to the evidence which has convinced us. If this freedom be abused, it is an offence against God, not against man: To God, therefore, not to man, must an account of it be rendered. . . Are the quakers and Menonists the only sects who think a compulsive support of their Religions unnecessary and unwarrantable? can their piety alone be entrusted with the care of public worship? Ought their Religions to be endowed above all others with extraordinary privileges by which proselytes may be enticed from all others? We think too favorably of the justice and good sense of these demoninations to believe that they either covet pre-eminences over their fellow citizens or that they will be seduced by them from the common opposition to the measure.
5. Because the Bill implies either that the Civil Magistrate is a competent Judge of Religious Truth; or that he may employ Religion as an engine of Civil policy. The first is an arrogant pretension falsified by the contradictory opinions of Rulers in all ages, and throughout the world: the second an unhallowed perversion of the means of salvation.
Source of Information:
Memorial and Remonstrance, James Madison ca. 20 June 1785.
Setting the stage
F. Judicial Techniques in Constitutional Litigation
§ 15:33. Avoiding the constitutional issue
The United States Supreme Court has often announced that it will not decide constitutional issues unless doing so is unavoidable." It said, for instance, in 1952: "This Court will not pass upon the constitutionality of an act of Congress . . . unless such adjudication is unavoidable . . . ." The same judicial abstinence customarily prevails with reference to acts of the state legislatures, as well as to executive decisions and procedures at trial. "Constitutional adjudication should where possible be avoided," says the court.
The Supreme Court avoids constitutional issues frequently by deciding cases on nonconstitutional grounds, rather than on the claims of unconstitutionality. For example, in 1948, the court decided that judicial enforcement of racially restrictive covenants in the District of Columbia violated national public policy, rather than the Fifth Amendment. Said the court: "It is a well settled principle that this court will not decide constitutional questions where other grounds are available and dispositive of the issues of the case."1 The Supreme Court will, if possible, decide cases on nonconstitutional grounds even when such grounds were not raised by the parties. (Internal citations and footnotes omitted, supplied upon request)
Source of Information:
Modern Constitutional Law, Volume II, The States and the Federal Government, Chester L. Antieau, Lawyers Cooperative Publishing. (1969) p. 687.
". . . It would not solve all; for example, constitutional tolerance of the opening prayers in the Congress would require some other theory-possibly the idea that another class of public activity which the Dean of the Yale Law School recently called "ceremonial deism,"7 can be accepted as so conventional and uncontroversial as to be constitutional." . .
7. I quote Dean Rostow from my memory of his spoken words, I hope correctly. The phrase occurred in his Meiklejohn Lecture at Brown in May, 1962, which is unpublished.
Source of Information:
40 Ind L. J. 83, 86 n, 7 (1964-65) Book Reviews, Religion and the American Constitution, By Walter G. Katz, Reviewed by Arthur E. Sutherland. Evanston: The Northwestern University Press, 1963,pp.. 318. $3.50.
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 1965, Rostow reconciled the Establishment Clause with a "class of public activity, which . . . c[ould] be accepted as so conventional and uncontroversial as to be constitutional." Rostow labeled this class of public activity "ceremonial deism."
Source of Information:
Rethinking the Constitutionality of Ceremonial Deism, Steven B. Epstein, 96 Colum L. Rev. 2091 (1996).
Deism was actually a religion that existed in Europe and America during the founding era. It is that same Deism that so many on the religious right want to deny any of the founders were.
There is something very ironic that a name of a religion that was viewed as being so threatening by many men of the founding era and by many on the religious right today has come to mean irrelevant words and/or practices devoid of any religious meaning or intent. More on the subject:
Deism in America was a product of French intellectual thought in the eighteenth century3l and had among its fundamental principles the existence of a Supreme Deity, worthy of adoration, and the necessity of religious liberty.It also eschewed theological and ecclesiastical extremes. One of deism's most ardent American proponents was Thomas Paine According to Paine, "[d]eism, from the Latin word Deus, God, is the belief of a God, and this belief is the first article of every man's creed."m 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. (Internal citations removed)
Source of Information:
Rethinking the Constitutionality of Ceremonial Deism, Steven B. Epstein, 96 Colum L. Rev. 2091 (1996).
Eugene Rostow, Dean of the Yale University Law School, introduced the term in 1962. Deism was a belief popular among some social and political reformers during the Enlightenment period. Eschewing sectarianism, the Deists instead believed in a single god that created the universe and established the Laws of Nature. This deity, though, refrains from interfering with these processes. There are no miracles, revelations or interventions made possible through prayer.
Several of the founding fathers and others identified with the period of the American Revolution have been described as Deists. Jefferson and Madison expressed doubts about Christian orthodoxy, and perhaps the most outspoken and clearly identified Deist of his time was Ethan Allen, hero of the battle at Fort Ticonderoga. He authored a provocative book, "Reason, The Only Oracle of Man," and informed readers: "I have generally been denominated a Deist, the reality of which I have never disputed."
But the term ceremonial deism was Rostow's effort to justify a number of constitutionally suspect practices by defining them away. He argued that the term referred to activities such as the celebration of Christmas, or the presence of "In God We Trust" on money that were "so conventional and uncontroversial as to be constitutional."
Source of Information:
The Trap of Ceremonial Deism
If taken literally, "ceremonial deism" suggests that the beliefs of Deists are not worthy of protection from government usurpation under the Establishment Clause. Deism is a sincere belief that has existed in the United States from the birth of this nation. Suggesting that it, unlike any other belief, can be trivialized or secularized for use by government is itself a violation of the principles underlying the Establishment Clause. The respect for religious beliefs engendered by the Establishment Clause would be equally violated by secularizing Catholic, Protestant, Islamic, Jewish, Hindu, or Sikh beliefs and practices to the point where "they have lost through rote repetition any significant religious content." Lynch v. Donnelly, 465 U.S. 668, 716 (1984) (Brennan, J. dissenting). Thus, we must eliminate the Deist from ceremonial deism if that concept is to pass constitutional muster.
Source of Information:
Brief of Amici Curiae, Seattle Atheists, (and others) in support of respondent, Elk Grove unified School District v. Newdow, p. 11.
A more accurate description of the concept might be "ceremonial god assertion." In other words, references to a generic god are constitutionally valid so long as they are so trivial as to be meaningless in a religious sense. The Pledge of Allegiance, however, does not refer to a generic god. Rather, it refers to a very specific God, a god with a capital "G." Thus, whatever ceremonial god assertion might be, it certainly is not represented by the inclusion of the phrase "under God" in a daily teacher led recitation of the Pledge of Allegiance by public school elementary students. Including the phrase "under God" in such a daily recitation does not qualify as mere ceremonial deism because it contains significant religious content, it is unquestionably controversial, and it does not have an established history.
Source of Information:
Brief of Amici Curiae, Seattle Atheists, (and others) in support of respondent, Elk Grove Unified School District v. Newdow, p. 11.
Ceremonial Deism and Public 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. . .
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. 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." 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." 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
A more recent book by Sanford Levinson, entitled Constitutional Faith, contemplates a radically different civil religion. Levinson's civil religion consists of the "web of understandings, myths, symbols, and documents" that justified the new American nation following the Revolution. 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. The worship of the Constitution replaced the need for a national church, an institution the Framers had rejected.
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. . .
In sharp contrast, Bellah's version of civil religion does involve core elements of true sacral religion, though in a watered-down sense. . .
Source of Information:
Rethinking the Constitutionality of Ceremonial Deism, Steven B. Epstein, 96 Colum L. Rev. 2096-97 (1996).
Power, Its about Power
. . . Wherever one stands with respect to belief in God, it can hardly give comfort or satisfaction to have the Deity subjected to empty, nonreligious uses "of a patriotic or ceremonial character." The bland amalgamation of God and the state, while it may meet the test of the Establishment Clause, leads at best to a kind of cant that all of us may find embarrassing.
In the same class, though perhaps more debatably, I'd put the improvement on the Pledge of Allegiance fashioned by Congress in 1954. That was a year, it will be recalled, when Senator Joseph McCarthy was still exploring how low we might be sunk in his ersatz but grimly destructive crusade against "subversives." It was also a year McCarthy's colleagues found it meet to insert the words "under God" after the reference to this "one nation" in the pledge. The House Report on the bill that became this law said that "it would serve to deny the atheistic and materialistic concepts of communism with its attendant subservience of the individual. "17 Some very brief remarks on the floor reaffirmed that inserting the words "under God" would "strengthen the national resistance to communism."18 The only cerebration manifested on the subject of the bill had to do with the number and placement of commas in the revised pledge -i.e., whether it should be simply "one nation under God" or "one Nation, under God," as the legislative judgment finally determined. The short debate on this subject was suitably placid. There was no debate at all on the merits of the revision and no vote against it. Who, after all, would be caught in the open excluding God?
The uses of God as a "ceremonial and patriotic" implement go forward steadily in more obtrusive and questionable forms. The insistent demand to have creches and menorahs in public sites continues to present tough questions leading to the varieties of intricate and disputed answers mentioned in Chapter i. The legal issues are tricky enough to promise a continued supply of test cases. To oversimplify a lot, the hardest cases -where private groups want to put their creches or menorahs in the public park or on City Hall plaza-pit the First Amendment free-speech rights of those groups against the claim of the objectors that this placement of the symbols indicates government endorsement of the religion symbolized. Without questioning the difficulty of these cases, it is fair to conjure with the question why they keep happening. The answer lies, I think, in the very nature of hostile and competitive patriotism out of which one might wish that God could have been kept. The creche on the public square--to "put Christ back into Christmas," as its sponsors say--plants the religious flag of the angry nativists winning theirs back from the alien, infidel intruders. (Who do they think they are?) The menorah sponsors are a kindred but more pathetic story. (If the goyim can do it, so can we.) Both are joined together as enemies of the mutual forbearance that is at the heart of religious freedom in a pluralist society.
The gist of the demand is that THE MUSCLE OF YOUR RELIGION be displayed in the public space. THE SUBJECT as is usual with facile shows of patriotism, IS POWER. It is put, to be sure, as a matter of free expression by the creche and menorah advocates, but that is largely fraud or self-delusion.. There are ample private spaces in every community, amply visible, for displaying religious icons. The insistence on the public space, the space that belongs to all of us, is to show those others, the nonadherents. The distinction is readily, if not always malevolently, blurred. . .
Whatever misunderstandings may beset a recent refugee from Soviet atheism, there is no ground for similar confusion, and probably no similar confusion, among most people who want their religious symbols standing on public property. The symbols make a statement-not of religious faith. They are not needed for that. They assert simply and starkly, as I've said, POWER OVER the nonbelievers. This was underscored for me in a fleeting moment of a case that ended 4-4 in the Supreme Court, the equal division (Justice Powell was ill and absent) resulting in a defeat for the village of Scarsdale (with me as unsuccessful counsel) when it sought to deny a place for a creche in a public circle.20 In the course of that proceeding, one of the sponsors of the creche was asked about his interest in viewing it while it stood on Scarsdale's Boniface Circle during the Christmas season. To my surprise as the questioner, it turned out that he never bothered to go look at the creche at all, let alone to admire or draw inspiration from it. But on reflection that should not have been so surprising. The creche was not there for him to see or appreciate for its intrinsic spiritual value in his religious universe. It was there for others, who professed other religions or none, so that the clout of his religious group should be made manifest-above all to any in the sharply divided village who would have preferred that it not be there: This is the low road., followed by at least a good number of those who seek for. their religion and its symbols the imprimatur of government. If it is religious at all, this stance betokens a weak and self-doubting species of faith.
Source of Information:
Faith and Freedom, Religiosity in America, Marvin E. Frankel (retired U S Federal District Court judge) Hill and Wang, N Y (1994) pp. 55-64.
Why the Court Should Reject This Pledge, and Why the Department of Justice Is Wrong To Support It
One would have thought that conservatives would have sided with the parent's right to raise one's child according to one's own religious beliefs, but as the Framers understood only too well, one should never underestimate the powerful temptation to extend one's power when one can.
If anyone thinks that this case is not about the power of the entrenched religious versus the powerlessness of nonbelievers in this society, today's oral argument proves them wrong. Chief Justice Rehnquist floated several proposals to defend "under God." First, he stated that the two words were not really a "prayer," a distinction without a difference.
. . . The result is a tyranny of principles (including the emotivist's principle of deference to "objective expertise"), as well as a concomitant response in favor of a tyranny of individuals (anarchy). These twin aspects of emotivism are evident, for example, in the rise of efforts, under the rubrics of free speech and free exercise, to place formal Christian prayers sanctioned by school authority back into the public schools. The free exercise right is asserted here in terms of anarchical, radical individual rights: "my" individual rights, "my" absolute right to free exercise, without regard to the disestablishment principle or to competing interests of the community. Interestingly, where they are able, religious adherents (also or instead) argue the authoritarian side of emotivism: They reject any court's interpretations of the first amendment which recognize civil liberties contrary to their beliefs because these interpretations are based upon nothing more than the justices' personal opinions and subjective feelings.13 Their majority status and legislative influence are the hard facts which objectively, and thus conclusively, should decide the issue.
Source of Information:
Regulating Religion, The Courts and the Free Exercise Clause. Catharine Cookson, Oxford University Press, (2001) p (Preface) IX.
If Alabama's Chief Justice Moore weren't a judicial demagogue and if he really wanted to "do it right," he wouldn't have done it the way he did. He'd have talked it over with his colleagues, he'd have done some research, and he'd have solicited input from legal scholars and historians -- and there wouldn't be any "Ten Commandments controversy" whatever. Moore would have had his Moses, and more.... But, in my opinion, politicians like Moore aren't as much about Moses and the great Judeo-Christian tradition as they are about using Moses and the great Judeo-Christian tradition to create controversy and get votes.(11.04.2001)
Source of Information:
BurtLaw's Court Gazing II; BurtLaw.Com -- LawAndEverythingElse.Com; Copyright (c) 2001 Burton Randall Hanson
[Scroll down to: The "Ten Commandments movement" revisited.
The entire argument rests on wanting the government to acknowledge God in various forms and fashions. To create at the very least perceived unions between church (religion) and state (government) It's about power, in some instances money, politics, and in your face to all non-believers and/or "incorrect" believers.
Let's look at that word:
Acknowledge: (ak not/ij), vt., -edged -edg-ing.
1. to admit to be real or true; recognize the existence, truth, or fact of; confess to: to acknowledge belief in God.
2. to show or express recognition or realization of: to an acknowledge an acquaintance by bowing.
3. to recognize the authority, validity, or claims of: The member nations acknowledged the powers of the President.
4. to show or express appreciation or gratitude for: to acknowledge a favor
5. to indicate or make known the receipt of: to acknowledge a letter
6. to take notice of or reply to: to acknowledge a greeting
7. Law. to confirm as binding or of legal force: to acknowledge a deed. [late :NlE acknow- leche, equiv. to acknow (OE acndwan to recognize; see A-3, Ib acid!- -ac-
-Syn. 1. concede, grant. acknowledge, admit, confess agree in the idea of declaring something to be true. Acknowledge implies making a statement reluctantly, often about something previously denied: to acknowledge a fault. Admit especially implies acknowledging something under pressure: to admit a charge. Confess usually means stating somewhat formally an admission of wrongdoing, crime, or shortcoming: to confess guilt; to confess an inability to understand. -Ant. 1. deny.
Acknowledgment (ak no1Hj mant), n.
1. act of and an acknowledging or admitting.
2. recognition of the existence or truth of anything: the acknowledgment of a sovereign power.
3. an expression of appreciation.
4. a . a thing done or given in appreciation or gratitude.
a. declaration by a person before an official that be executed a legal document.
b. an official certificate of a formal acknowledging.
c. public recognition by a man of an illegitimate child as his own. Also. esp. Brit. wteria) acknowliedgement. [acknowledge + -ment]
Source of Information:
Webster's New Universal Unabridged Dictionary, Barnes &: Noble Books, (1994) p. 12.
It has always been about power. Going back to the First Century A D it was about power.
Church and state unions have always been about power. "Maintain the status quo" has always been about power--mainlining the existing power balance and structure. "Recognize minorities and give them the equality they are entitled to" is about power, The disenfranchised have little power, they want some, those that have it don't want to give it up. Same sex marriages, again power. Gays are demanding equality and those who have the power currently feel threatened and don't want them to be equal in power.
Christians Against "Ceremonial Deism."
Another description of the "American Civil Religion" is "Ceremonial Deism." Although many Christians used to claim victory when Christian symbols were approved by a court, many are now recognizing these victories as pyrrhic.
[Pyrrhic victory--a victory gained at too great a cost.]
Ceremonial Deism in Classical times
If "Ceremonial Deism" is suppose to mean something that is so instilled in our culture that it has basically lost any real religion meaning, importance or significance, then kindly explain the reaction of the Congress, the President, the justice Department, many religious leaders and large segments of the public to the June 26, 2002 "Under God" ruling.
Those reactions alone establish the falsity of the Ceremonial Deism claims.
Jack M. Balkin
Note that the doctrine of ceremonial Deism is a double edged sword. It allows state officials to acknowledge God's existence, but only by requiring them to affirm that the meaning of the acknowledgment is purely ceremonial and doesn't reflect fervent adherence to a particular religious belief. However, one suspects that many people want to invoke God's name precisely because they do have such fervent beliefs and they want other people to share in those beliefs, or, at the very least, publicly say the words that reflect such beliefs. But *that* purpose for legislation really is impermissible-- Our Constitution doesn't allow us to force our religion on other people.
If the Supreme Court takes the Ninth Circuit case, they may very well reverse the decision on the grounds I've just outlined-- that the pledge is just ceremonial Deism, and therefore doesn't mean what religious Americans want it to mean. That would be a predictable result, and an ironic one.
But the irony works in both directions. For a court to strike down the words "under God," particularly when they have been said formulaicly for decades, may have exactly the opposite social meaning-- suggesting that the court is attempting to remove God from the public square. Ceremonial Deism by its nature tries to have it both ways. It treats certain religious expressions as being both religious and not "really" religious. It justifies this on the grounds that the practice is one of long standing and its religious content has long since faded into the background. The problem, however, is then that deviating from the status quo in any direction-- making the government's claims more overtly religious or removing the religious language altogether-- seems to create a social meaning of non-neutrality with respect to religion. So in most cases the best thing to do with examples of ceremonial Deism is just to leave them alone.
The "Ten Commandments Judge" the ACLU helped elect.
The tangled web of Ceremonial Deism
Schools Are Special
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: . . .
This syllogistic reasoning has been aptly named the "any more than" test.14 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. 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 of ceremonial deism. Each step in the process is valuable ammunition for the next . . .
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.2s No commentator has systematically 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.
Source of Information:
Rethinking the Constitutionality of Ceremonial Deism, Steven B. Epstein, 96 Colum L. Rev. 2087-89 (1996).
AJ Congress Stands Alone on Pledge Issue
The AJ Congress brief invokes the concept of "ceremonial deism," a term coined in 1962 by Eugene Rostow, then dean of Yale Law School, to describe a category of customary governmental references to God which the court has permitted on the grounds that they simply acknowledge America's historically religious roots rather than endorse a certain religious belief. . .
Still, "ceremonial deism" has generally remained a vague concept, . . .
Some church-state-separation purists, including the Rev. Barry Lynn, executive director of Americans United for Separation of Church and State, reject the entire notion of "ceremonial deism."
"I find it very difficult to accept," Lynn said. "If you use the word God, you are using a powerful and meaningful word, so I have trouble with this notion."
Lynn noted that Congress inserted the phrase "under God" into the pledge in 1954, explicitly to distinguish America from the Soviet Union. When President Dwight D. Eisenhower signed the bill authorizing the change, he stated, "From this day forward, the millions of our schoolchildren will daily proclaim ... the dedication of our nation and our people to the Almighty."
Lynn said, "This was about a regular affirmation of belief in God as traditionally understood."
Lower Courts in Recent Times
Federal Court Finds Ohio's State Motto Unconstitutional
Date: Tue, 25 Apr 2000 13:32:06 -0500
By John Nolan, Associated Press
Cincinnati (April 25, 2000 1:11 p.m. EDT) -
Ohio's state motto - "With God, all things are possible" - violates the U.S. Constitution as a government endorsement of religion, the 6th U.S. Circuit Court of Appeals ruled Tuesday.
A panel of the federal court sided with the American Civil Liberties Union, which contended that the words had no secular purpose and appeared to be a government endorsement of the Christian religion.
Ohio took the motto in 1959 from the Bible.
The state could appeal the court's 2-1 ruling to the full, 13-judge appellate court or ask the Supreme Court to review it.
The ACLU and the plaintiff it represents, the Rev. Matthew Peterson, a Presbyterian minister in suburban Cleveland, objected to Ohio's use of the motto and challenged all of Ohio's official uses of the motto. . .
The National Motto, "Ceremonial Deism"
The court also moved to distance the Ohio slogan from the national motto of "In God We Trust," and reject the state's argument that the two were a form of so-called "ceremonial deism." The latter phrase was first used in legal literature by Dean Eugene Rostow of Yale University Law School during the 1962 Meiklejohn Lecture at Brown University and describes "constitutional tolerance of the opening prayers in the Congress (which) would describe some other theory -- possibly the idea that another class of political activity ... can be accepted as so conventional and uncontroversial as to be constitutional."
"Finally, we have noted government cannot be completely prohibited from recognizing in its public actions the religious beliefs and practices of the American people as an aspect of our national history and culture. While I remain uncertain about these questions, I would suggest that such practices as 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 a form of 'ceremonial deism,' protected from Establishment Clause scrutiny because they have lost through rote repetition any significant religious content..."
The 6th Circuit Court panel, though, rejected Ohio's argument comparing the state motto to the national slogan or other practices which, so far, have evaded legal scrutiny because of the "ceremonial deism" mantle.
"While the words of the (Ohio) motto may not overtly favor Christianity," wrote Judge Cohn, "as the words of Jesus they, at a minimum, demonstrate a particular affinity toward Christianity in the eyes and ears of a reasonable observer."
The real reason behind this state action adopting a religious verse from the New Testament seems purely political: To please certain politically influential religious groups. Madison, the draftsman of and the guiding hand behind the First Amendment, was not wrong when he predicted that such religious and political "coalitions" would develop in the new Republic and that a fundamental law should be adopted to deter government and religious groups from the "tendency to a usurpation on one side or the other, or to a corrupting coalition or alliance between them." IX The Writings of James Madison, 487 (G. Hunt ed. 1910).
Merritt [Gilbert S.], Circuit Judge, Concurring.
Electronic Citation: 2000 Fed App. 0148p (6th Cir.) File Name: 00a0148p.06
Why the Ohio Motto is Unconstitutional?
Recently in the Courts
March 16, 2001
6th Circuit Court of Appeals Am. Civil Liberties Union of Ohio v. Capitol Square Review and Advisory Bd. (03/16/01 - No. 98-4106)
Ohio's statutory adoption of the motto: "With God, All Things Are Possible" under Ohio Rev. Code 5.06 does not violate the Establishment Clause of the First Amendment because its sentiment is part of the country's long and deeply entrenched tradition of civic piety, or "Ceremonial Deism."
United States Supreme Court Cases Referencing Ceremonial And Ceremonial Deism
Ceremonial deism has been implicitly referred to, by the U S Supreme Court from the very beginning of 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.44 In Zorash 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."45
In short, he wrote, "[w]e are a religious people whose institutions presuppose a Supreme Being."
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 "[s]uch patriotic or ceremonial occasions bear no true resemblance to the unquestioned religious exercise that the State of New York has sponsored in this instance."47 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 `eve 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."48 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 reading aloud of Lincoln's Gettysburg Address, which contains an allusion to the same historical fact."49
The defining moment for ceremonial deism came in Lynch v. Donnehdy. 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"5o and the fact that "[o]ur 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."51 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.52 Similar implicit references to the concept of ceremonial deism have been commonplace in the Court's recent Establishment Clause jurisprudence.53
Source of Information:
Rethinking the Constitutionality of Ceremonial Deism, Steven B. Epstein, 96 Colum L. Rev. 2095-96 (1996).
The phrase [ceremonial deism] has explicitly appeared in only two Supreme Court opinions, the nativity scene cases of Lynch v. Donnelly 36 and County of Allegheny v. ACLU.37 1984
Lynch v. Donnelly, 465 U.s. 668 (1984) (Ussc+)
Brennan, J., Dissenting Opinion
Finally, we have noted that government cannot be completely prohibited from recognizing in its public actions the religious beliefs and practices of the American people as an aspect of our national history and culture. See Engel v. Vitale, supra, at 435 , n. 21; Schempp, supra, at 300-304 (BRENNAN, J., concurring). While I remain uncertain about these questions, I would suggest that such practices as 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 a form a "ceremonial deism," [n24] protected from Establishment Clause scrutiny chiefly because they have lost through rote repetition any significant religious content. See Marsh v. Chambers, 463 U.S. at 818 (BRENNAN, J., dissenting). [p*717] Moreover, these references 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. Cf. Schempp, supra, at 265 (BRENNAN, J., concurring). 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.
Allegheny County V. Greater Pittsburgh ACLU, 492 U.S. 573 (1989)
[Plurality decision, Blackman]
Second, the concurrence articulates a method for determining whether the government's use of an object with religious meaning has the effect of endorsing religion. The effect of the display depends upon the message that the government's practice communicates: the question is "what viewers may fairly understand to be the purpose of the display." Id., at 692. That inquiry, of necessity, turns upon the context in which the contested object appears: "[A] typical museum setting, though not neutralizing the religious content of a religious painting, negates any message of endorsement of that content." Ibid. The concurrence thus emphasizes that the constitutionality of the creche in that case depended upon its "particular physical setting," ibid., and further observes: "Every government practice must be judged in its unique circumstances to determine whether it [endorses] religion," id., at 694. 46 [492 U.S. 573, 596]
In Marsh, the Court relied specifically on the fact that Congress authorized legislative prayer at the same time that it produced the Bill of Rights. See n. 46, supra. JUSTICE KENNEDY, however, argues that Marsh legitimates all "practices with no greater potential for an establishment of religion" than those "accepted traditions dating back to the Founding." Post at 669 , 670 . Otherwise, the Justice asserts, such practices as our national motto ("In God We Trust") and our Pledge of Allegiance (with the phrase "under God," added in 1954, Pub.L. 396, 68 Stat. 249) are in danger of invalidity.
Our previous opinions have considered in dicta the motto and the pledge, characterizing them as consistent with the proposition that government may not communicate an endorsement
[p*603] of religious belief. Lynch, 465 U.S. at 693 (O'CONNOR, J., concurring); id. at 716-717 (BRENNAN, J., dissenting). We need not return to the subject of "Ceremonial Deism," see n. 46 , supra, because there is an obvious distinction between creche displays and references to God in the motto and the pledge. However history may affect the constitutionality of nonsectarian references to religion by the government, [n52] history cannot legitimate practices that demonstrate the government's allegiance to a particular sect or creed.
Indeed, in Marsh itself, the Court recognized that not even the "unique history" of legislative prayer, 463 U.S. at 791 , can justify contemporary legislative prayers that have the effect of affiliating the government with any one specific faith or belief. Id. at 794-795 . The legislative prayers involved in Marsh did not violate this principle, because the particular chaplain had "removed all references to Christ." Id. at 793 , n. 14. Thus, Marsh plainly does not stand for the sweeping proposition JUSTICE KENNEDY apparently would ascribe to it, namely, that all accepted practices 200 years old and their equivalents are constitutional today. Nor can Marsh, given its facts and its reasoning, compel the conclusion that the display of the creche involved in this lawsuit is constitutional. Although JUSTICE KENNEDYY says that he "cannot comprehend" how the creche display could be invalid after Marsh, post at 665 , surely he is able to distinguish between a specifically Christian symbol, like a creche, and more general religious references, like the legislative prayers in Marsh. [p*604]
JUSTICE KENNEDY's reading of Marsh would gut the core of the Establishment Clause as this Court understands it. The history of this Nation, it is perhaps sad to say, contains numerous examples of official acts that endorsed Christianity specifically. See M. Borden, Jews, Turks, and Infidels (1984). [n53] Some of these examples date back to the Founding of the Republic, [n54] but this heritage of official discrimination [p*605] against non-Christians has no place in the jurisprudence of the Establishment Clause. Whatever else the Establishment Clause may mean (and we have held it to mean no official preference even for religion over nonreligion, see, e.g., Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989)), it certainly means, at the very least, that government may not demonstrate a preference for one particular sect or creed (including a
preference for Christianity over other religions). "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). There have been breaches of this command throughout this
Nation's history, but they cannot diminish in any way the force of the command. Cf. Laycock,
supra, n. 39 , at 923. [n55]
[ Footnote 46 ] The difference in approach between the Lynch majority and the concurrence is especially evident in each opinion's treatment of Marsh v. Chambers, 463 U.S. 783 (1983). In that case, the Court sustained the practice of legislative prayer based on its unique history: Congress authorized the payment of legislative chaplains during the same week that it reached final agreement on the language of the Bill of Rights. Id., at 788. The Lynch majority employed Marsh comparatively: to forbid the use of the creche, "while the Congress and legislatures open sessions with prayers [492 U.S. 573, 596] by paid chaplains, would be a stilted overreaction contrary to our history and to our holdings." Lynch, 465 U.S., at 686 .
The concurrence, in contrast, harmonized the result in Marsh with the endorsement principle in a rigorous way, explaining that legislative prayer (like the invocation that commences each session of this Court) is a form of acknowledgment of religion that "serve[s], in the only wa[y] 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." 465 U.S., at 693 . The function and history of this form of ceremonial deism suggest that "those practices are not understood as conveying government approval of particular religious beliefs." Ibid.; see also id., at 717 (BRENNAN, J., dissenting).
JUSTICE O'CONNOR, concurring in part and concurring in the judgment.
JUSTICE KENNEDY submits that the endorsement test is inconsistent with our precedents and traditions because, in his words, if it were "applied without artificial exceptions for historical practice," it would invalidate many traditional practices recognizing the role of religion in our society. Post at 670 . This criticism shortchanges both the endorsement test itself and my explanation of the reason why certain longstanding government acknowledgments of religion do not, under that test, convey a message of endorsement. Practices such as legislative prayers or opening Court sessions with "God save the United States and this honorable Court" serve the secular purposes of "solemnizing public occasions" and "expressing confidence in the future," Lynch, 465 U.S. at 693 (concurring opinion). These examples of ceremonial deism do not survive Establishment Clause scrutiny simply by virtue of their historical longevity alone. 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 14th Amendment. As we recognized in Walz v. Tax Comm'n of New York City, 397 U.S. 664 , 678 (1970), [N]o 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.
Under the endorsement test, the "history and ubiquity" of a practice is relevant not because it creates an "artificial exception" from that test. On the contrary, the "history and ubiquity" of a practice is relevant because it provides part of the context in which a reasonable observer evaluates whether a challenged governmental practice conveys a message of endorsement of religion. It is the combination of the [p 631] longstanding existence of practices such as opening legislative sessions with legislative prayers or opening Court sessions with "God save the United States and this honorable Court," as well as their nonsectarian nature, that leads me to the conclusion that those particular practices, despite their religious roots, do not convey a message of endorsement of particular religious beliefs. See Lynch, supra, at 465 U.S. 693 (concurring opinion); Developments in the Law 1652-1654. Similarly, 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. The question under endorsement analysis, in short, is whether a reasonable observer would view such longstanding practices as a disapproval of his or her particular religious choices, in light of the fact that they serve a secular purpose, rather than a sectarian one, and have largely lost their
religious significance over time. See L. Tribe, American Constitutional Law 1294-1296 (2d ed.1988). Although the endorsement test requires careful and often difficult linedrawing and is highly context-specific, no alternative test has been suggested that captures the essential mandate of the Establishment Clause as well as the endorsement test does, and it warrants continued application and refinement.
Contrary to JUSTICE KENNEDY's assertions, neither the endorsement test nor its application in this case reflects "an unjustified hostility toward religion." Post at 655 . See also post at 663 , 667-678 . Instead, the endorsement standard recognizes that the religious liberty so precious to the citizens who make up our diverse country is protected, not impeded, when government avoids endorsing religion or favoring particular beliefs over others. Clearly, the government can acknowledge the role of religion in our society in numerous ways that do not amount to an endorsement. See Lynch, supra, at 693 (concurring opinion). Moreover, the government can accommodate religion by lifting government-imposed burdens on religion. See Wallace v. Jaffree, 472 [p*632] U.S. at 83-84 (opinion concurring in judgment). Indeed, the Free Exercise Clause may mandate that it do so in particular cases. In cases involving the lifting of government burdens on the free exercise of religion, a reasonable observer would take into account the values underlying the Free Exercise Clause in assessing whether the challenged practice conveyed a message of endorsement. Id. at 83 . By "build[ing] on the concerns at the core of nonestablishment doctrine and recogniz[ing] the role of accommodations in furthering free exercise," the endorsement test "provides a standard capable of consistent application and avoids the criticism leveled against the Lemon test." Rostain, Permissible Accommodations of Religion: Reconsidering the New York Get Statute, 96 Yale L.J. 1147, 1159-1160 (1987). The cases before the Court today, however, do not involve lifting a governmental burden on the free exercise of religion. By repeatedly using the terms "acknowledgment" of religion and "accommodation" of religion interchangeably, however, post at 662-664 , 670 , 678 , JUSTICE KENNEDY obscures the fact that the displays at issue in these cases were not placed at city hall in order to remove a government-imposed burden on the free exercise of religion. Christians remain free to display their creches at their homes and churches. Ante at 601 , n. 51. Allegheny County has neither placed nor removed a governmental burden on the free exercise of religion, but rather, for the reasons stated in Part IV of the Court's opinion, has conveyed a message of governmental endorsement of Christian beliefs. This the Establishment Clause does not permit.
Ceremonial Deism Protects the Remnants of the De Facto Establishment of Religion
There are world leaders in other countries that tell us we don't even live up to our own ideal of church state separation so long as we have things like "ceremonial deism" that are hold hold from our de facto establishment of Protestant Christianity at times in the 1800s that we refuse to declare them unconstitutional which in fact they are, and we have things like Chaplains in Congress etc..
How United States Church-State Relations Play on the World Stage
By Marci Hamilton
What the European Professors Had to Say About Our Application of James Madison's Theory
For example, two professors came to me after my talk, in which I discussed James Madison's devotion to the concept of separation of church and state. They thought that Madison's theory was all well and good, but they believed that it was obsolete; the United States, they claimed, had long ago decided to adopt an established church. Our actions, they said, speak louder than our words.
As I shook my head vigorously, thinking we had a language barrier between us, they pulled out their prime proof: legislative chaplains - - that is, chaplains who recite a prayer before the opening of a state or federal legislative. And not just any legislative chaplains, they pointed out, but a preponderance, a dominance of Protestant legislative chaplains since the beginning of the country. Didn't that prove, they said, that this country has an established church, no matter how we try to argue otherwise? Isn't this a "Christian" country? Moreover, they continued, as I opened my mouth to attempt to finesse the point, the United States Supreme Court expressly upheld legislative chaplains in a "very famous case," Marsh v. Chambers.
Marsh v. Chambers?, I thought to myself. That is such a small case in the constellation of our religion jurisprudence. At least from a stateside perspective. Sure, the Court held that the presence of legislative chaplains does not violate the Establishment Clause, but the Court emphasized that is because having such chaplains is a long-held practice, a type of "ceremonial deism." In any case, having such chaplains really does not make much difference; the legislators aren't there to hear the prayer. And, if they are, they aren't paying attention. Even if they were, it would never be coercive because they are adults. Chaplains were like the "In God We Trust" motto on the coins, containing a religious element, but surely not "real" establishment.
Their point was hard to deny: we had opened the door to establishing a church, the Protestant church, in this country. This seemingly inconsequential case, which is reasoned away by the Supreme Court and most religion theorists, stands as an example to the world of the establishment of religion. It brings a tarnish, obviously, to the claims by the United States that it is the home of diversity and the haven for pluralism.
Marsh v. Chambers, 463 U. S. 783 (1983)
[Be sure and read the dissenting opinions as well]
You will find Marsh v. Chambers cited in a number of cases. It played a very important role in some especially Allegheny County v. Greater Pittsburgh ACLU, 492 U.S. 573 (1989}The only problem is Marsh v. Chambers is a flawed decision. It is a classic example showing just how far a court will go to avoid during the right thing. The right thing in that case was to rule something that was unconstitutional exactly that, unconstitutional.
When one combines the following with the dissenting opinions in Marsh v Chambers one has a very compelling argument in favor of overturning Marsh v Chambers.
Chaplains and Congress
Chief Justice Burger, I Would Like You To Meet Mr. Madison
. . . In the Walz case, Burger was not content with noting that tax exemption for churches was a common practice when the Constitution and the First Amendment were adopted; he tested the practice by the purpose, effect, and entanglement standard and found that it passed that test.
In Marsh v. Chambers (1983), Burger did not subject legislative chaplaincies to the same test.
In that case, a rather courageous member of the Nebraska legislature brought suit challenging the constitutionality of a longstanding practice of starting each day the legislature met with a prayer recited by a salaried chaplain. At the time the suit was brought, the chaplain had occupied the office for sixteen years, and during most of this period, his prayers were Christological. This had come to an end in 1980, as indicated by footnote 14 of the majority opinion: [Chaplain] Palmer characterizes his prayers as 'non-sectarian,' Judeo Christian,' and with `elements of the American civil religion.' App. 75 and 87. (Deposition of Robert E. Palmer). Although some of his earlier prayers were often explicitly Christian, Palmer removed all references to Christ after a 1980 complaint from a Jewish legislator.
In the Marsh case, the district court held, and it was this holding that was appealed, that the state's appropriation of funds used to pay the chaplain's salary was unconstitutional, but that the practice itself was not. (In this respect, it was echoing Madison's position.) The court of appeals (echoing Jefferson's) went further and ruled that the practice was unconstitutional in its entirety and that it did not matter whether or not the chaplain received salary for his services. The Supreme Court decided that both lower courts were wrong and held that the practice itself was valid and so, too, was the chaplain's receipt of monetary compensation for his services. The Court, in an opinion by Burger, held immaterial the fact that the chaplain had served for sixteen years; he noted that for the twenty years between 1949 and 1969, one chaplain had served in the United States Senate.
In reaching their decisions, both lower courts had relied on the purpose, effect, and entanglement test, but, beyond mentioning this fact, the Supreme Court paid no further attention to it. Burger relied exclusively on history. Perhaps he did so because, as Brennan suggested in his dissenting opinion, the Nebraska law could not escape invalidation under any of the facets in the three-pronged test of constitutionality, especially the one relating to Burger's own contribution in Walz v. Tax Commission.
In his recitation of history, Burger could hardly pretend that the "Detached Memoranda" never existed. He disposed of it in a short footnote. To Brennan, the "Detached Memoranda" was more significant and relevant to the issue before the Court in the Marsh case than Burger considered it to be. In his dissenting opinion, he quoted, not as a footnote but in its body, the two paragraphs quoted above, answering in the negative the question whether the appointment of congressional chaplains is consistent with the Constitution. Brennan also suggested that "Madison's later views [in the "Detached Memoranda"] may not have represented so much a change of mind as a change of role, from a member of Congress engaged in the hurley-burley of legislative activity to the detached observer engaged in unrepressed reflection. " The difficulty with this rationalization is that, what Madison voted for in the First Congress cannot be easily reconciled with what he had written five years earlier in the "Memorial and Remonstrance."
(Internal citations and footnotes have been removed, supplied upon request)
Source of Information:
"Madison's 'Detached Memoranda': Then and Now." Leo Pfeffer, The Virginia Statue for Religious Freedom, Its Evolution and Consequences in American History, Edited by Merrill D. Peterson and Robert C. Vaughan, Cambridge University Press (1988) pp. 298-99.
What is significant with respect to the date of its writing is that Madison's "Detached Memoranda" interprets the Constitution and the Bill of Rights and, unlike the Declaration of Independence, does not rest exclusively on the laws of nature or nature's God, on Madison's own "Memorial and Remonstrance", or on Jefferson's Virginia Statute for Religious Freedom, although all are reported, confirmed, and defended. It would seem, therefore that the "Detached Memoranda" would be the best source for determining the intended meaning of the "religion" clauses of the First Amendment (and the provision of article VI of the Constitution forbidding religious test for public office) at least by the primary draughtsman of both the Constitution and First Amendment.
The "Detached Memoranda" considers eight issues relating to religion that have reached the Supreme Court in one way or another since the Constitution was adopted: (1) ecclesiastical monopolies; (2) incorporation of churches; (3) grants of public land to churches; (4) tax exemption of religious entities; (5) the Deity in government documents; (6) congressional chaplaincies; (7) military chaplaincies; and (8) religious proclamations by the government.
Source of Information:
"Madison's 'Detached Memoranda': Then and Now." Leo Pfeffer. The Virginia Statue for Religious Freedom, Its Evolution and Consequences in American History, Edited by Merrill D. Peterson and Robert C. Vaughan, Cambridge University Press (1988) pp 286, 87.
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 Court do not, is hopelessly inadequate. As justice Kennedy noted in his Allegheny dissent, "[e]ither 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." 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.
Source of Information:
Rethinking the Constitutionality of Ceremonial Deism, Steven B. Epstein, 96 Colum L. Rev. 2I73-74 (1996).
History shows us that from the very beginning of the efforts to separate church and state in this country there were two camps. I am not going to attach labels to those camps since labels can mean different things at different times in history. I will just say there were those who wished to maintain the status quo of unions between church and state and those who saw that real freedom couldn't be achieved as long as that were the case.
What we have seen over the past 50 or so years in Establishment Clause jurisprudence has been reenactments of that same philosophical battle, only it has been judges and justices who have been fighting the battle. Most if not all of the confusion that has been created in Establishment Clause jurisprudence was created as a direct result of this struggle between these two mind sets
Ceremonial deism was a way for justices to maintain elements of that de facto Protestant establishment or union between church and state that existed at times in the 1800s and even into the 1900s perhaps. A place to hide newer forms of unions between church and state. It was a way to keep them save and alive, when they should have been buried along with the other elements that have been ruled, properly so, unconstitutional.
There really are guidelines given by James Madison, with regards to Establishment Clause that could have been and could be followed now that would clear up the problems with regards to Establishment Clause jurisprudence, but it would require justices who are willing to do the hard things. We haven't had many of those lately, but, oh how we do need some.