Then the princes, the governors, and captains, the judges, the treasurers, the counselors, the sheriffs, and all the rulers of the provinces, were gathered together unto the dedication of the image that Nebuchadnezzar the King had set up.1
The Book of Daniel 3:3
Eventually, probably in the not too distant future, the Supreme Court of the United States will be forced to decide the constitutionality of the Pledge of Allegiance as amended in 1954.2 Michael A. Newdow,3 or perhaps someone else, will sit in the Supreme Court building for oral arguments next to a carving of Moses with the Ten Commandments.4 He or she will wait quietly as the Court opens with "God save the United States and this Honorable Court."5 The lawyers for both sides may nervously fumble with change in their pockets, change inscribed with our national motto, "In God We Trust."6
The oral arguments will likely focus on two main veins of thought: (1) the three tests created for handling Establishment Clause7 cases, and (2) the religious history, culture and practices of this nation dating back to the time of the drafters of the Constitution. Part I of this article details and explains these two central themes of all Establishment Clause jurisprudence, and Part II makes the suggestion that the second theme – religious history, culture, and practices – inadvertently exposes the inappropriate emergence of a new religion, one whose whole genesis and existence lies in the various branches and levels of government. This new religion poses a threat both to those belief systems not included under its large umbrella, namely atheism and polytheism, and to those Christian and Jewish sects from which it co-opts its religious ideas.
Part I: Tests and History
In the last thirty-two years, three different tests have emerged for handling Establishment Clause cases. The first, the so-called "Lemon Test," came about from Chief Justice Burger’s majority opinion in Lemon v. Kurtzman.8 In Lemon, two state statutes were held unconstitutional: a Rhode Island statute that provided salary supplements for teachers of secular subjects in nonpublic parochial schools, and a Pennsylvania statute that reimbursed church schools for "secular" expenses such as certain teachers salaries and textbooks.9 The Lemon test has three parts, all of which must be passed in order for the statute or policy to survive. First, the statute or policy must have a secular legislative purpose.10 Second, its principal or primary effect must be one that neither enhances nor inhibits religion.11 Finally, the statute or policy must not foster excessive government entanglement with religion.12 While apparently the primary test, the Lemon test has received more than its share of criticism.13
The second test, known as the "Coercion Test," originated in Lee v. Weisman,14 a case in which a father sued his daughter’s school district in order to enjoin it from continuing the practice of having a priest, minister or rabbi give a non-sectarian prayer at graduation ceremonies for a public school. Justice Kennedy, writing for the majority, stated that "[a]lthough our precedents make clear that proof of government coercion is not necessary to prove an Establishment Clause violation, it is sufficient."15 While Lee did not overrule the Lemon test, it did not apply it either.
Justice O’Connor created the third test, the "Endorsement Test," in her concurrence in Lynch v. Donnelly.16 In Lynch, the majority utilized the Lemon test to hold constitutional the actions of a municipality that included, in its annual holiday display, a nativity scene alongside Santa, reindeer, "candy-striped poles," and other "Christmas" paraphernalia.17 Justice O’Connor succinctly stated that "[t]he Government violates [the Establishment Clause] if it endorses or disapproves of religion."18
While much time and energy has been spent debating the merits of each test, a significant amount of Supreme Court parchment has also been devoted to reminding judges, attorneys, and lay persons of the heritage and traditions of our nation. Religion, and God, permeate American history and culture. Consider the following list of examples. U.S. money bears the phrase "In God We Trust,"19 which happens to also be our National Motto. The United States House of Representatives and many state legislatures open sessions with an invocation by a chaplain who is paid by the government.20 Supreme Court sessions open with "God save the United States and this Honorable Court."21 Christmas (Christ’s Mass) and Thanksgiving are federal holidays.22 The various branches of the military keep their own chaplains on the payroll.23 The Supreme Court building has an image of Moses with the Ten Commandments.24 Congress has provided for a number of chapels in the capital.25 Presidents since George Washington have issued proclamations of Thanksgiving.26 Witnesses in American courts have taken oaths on the Bible for centuries.27 Thomas Jefferson signed treaties to send clergy to Native Americans.28 The United States has a statutorily mandated Prayer Day.29 Churches and other religious institutions do not pay property taxes.30 Municipalities may constitutionally display overtly Christian and Jewish imagery, as long as that imagery is expressly linked to more secular paraphernalia.31 And of course, countless schoolchildren proclaim every day that we are "one Nation, under God."32
Part II: Government-Created Religion
Nothing bundles these practices and history together better than the concept of an "American Civil Religion."33 In the first, and still premier, article on the subject, Yehudah Mirsky detailed his solution to the problem of enforcing the Establishment Clause: make a distinction between "Sacral Religion," that which we normally think of when we speak of religion, and "Civil Religion."34 Mirsky describes civil religion as a "modern phenomena and part of long-term societal responses to problems that were generated by the advent of modernity," pointing out that civil religion focuses not on the sacral, but on the political.35 As evidence of "civil religion," Mirsky cites the phenomena described above (taking oaths on the Bible, Presidential proclamations, etc.) but goes on to include elements of a more secular nature, such as the Boston Tea Party, Plymouth Rock, the Fourth of July, and the Declaration of Independence.36 However, while Mirsky posited the existence of an American Civil Religion, he failed to take the concept far enough.
The Supreme Court came close to recognizing civil religion when, in Lee v. Weisman, it invalidated nonsectarian prayer at public school graduations.37 Justice Kennedy, writing for the majority, stated that "[t]he 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."38 The idea that civil religion was a possibility wafted through the opinion like incense smoke, though it never took its formal place at the center of the altar. In other cases, the Court has directed our attention to all of the religious elements already firmly embedded in our society and government, without formally recognizing that perhaps these elements point not to an acceptable level of religious terminology in the governmental lexicon, but rather to a whole new religion that exists apart from the sects from which it was derived, a religion that is in direct competition with all other belief systems. Civil religion is a religion built from parts of others, and like Frankenstein’s monster, it too now takes on a sinister being of its own, capable of destroying its creators.39
So what do we know of this American Civil Religion? We know that it is monotheistic; not polytheistic, not atheistic. Its god, who consequently has usurped the title "God," is the patron god of America, just as Yahweh was to the Israelites. It is some form of Universalism that picks and chooses from amongst the world’s religions and secular traditions for its components. It has no ordained priests or shamans, opting instead to use government officials as its spokespersons. All of its icons are inscribed on the sides of governmental buildings, and the government pays for all of its chapels. Its main use of the Bible is as some sort of bronze-age polygraph test. It has federally co-opted Christmas, and perhaps Thanksgiving, much to the dismay of those who would "put the Christ back in Christmas."40 It has its roots in Judeo-Christianity, or more specifically evangelical Protestantism, yet it has jettisoned Jesus,41 cast out the Holy Spirit, and there is no room in this Inn for the Virgin Mary. And most importantly, American Civil Religion has an absolute monopoly on the government’s religious dialogue. Atheism, Islam, Buddhism, Presbyterianism, and Methodism cannot counter the rhetoric of this new religion in the same governmental channels from which it perpetuates itself, and from which it proselytizes.
This American Civil Religion is not merely a benign accommodation of already existing religious sentiments, but rather the "establishment" of a whole new religious "denomination" that works to the detriment of previously existing religions, both those that it directly opposes, and those from which it robs ideas. An atheist should no more have to explain to his or her child why we are not "one nation, under God" than a fundamentalist Baptist minister should have to affirm that although the municipal Christmas display suggests otherwise, Santa Claus did not actually join the three wise men in bringing gifts to the newborn Jesus.
Concerning the exclusion of atheism and polytheism, the case against American Civil Religion is simple. Take for example the Pledge of Allegiance. The words betray themselves: "…one Nation, under God, indivisible…" – one nation, yes, in the sense of unity, community and patriotism – but the inclusion of deity language so immediately after "one Nation" and before "indivisible" stresses a point of unanimous religious support for monotheism. In this post-September 11 world, when a frightened and insecure nation clamors to express love of country, what message does the Pledge send to a non-believer who must betray his or her conscience in order to show American solidarity through the most simple and potent expression of patriotism? Why must one be "under God" in order to be part of the "one Nation?" Justice Kennedy said it best when he said that "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."42 Unfortunately, Justice Kennedy used this statement as support for the proposition that other elements of American Civil Religion should be held constitutional.
Perhaps the weight of its familiarity prevents members of mainstream Christianity and Judaism from seeing the offensiveness of American Civil Religion.43 Few would question the unconstitutionality of a newly minted coin with the inscription "In gods we Trust," or a State that opted to have its students recite that they are part of "one Nation, under Allah." A civic religion is, by definition,44 a derivation of the majority’s faith. It exists to the exclusion of minority faiths. American Civil Religion proclaims that some people’s most important inner orientations are wrong, and then pretends to not be speaking of religion – hiding behind the Judeo-Christian majority, and the fact that the Founding Fathers were its first disciples.
American Civil Religion is no less detrimental to Judaism and Christianity. In striving for "common ground"45 among religions, civil religion necessarily abandons many of the elements that define denominations and make the various sects unique. In terms that make sense to any law student, American Civil Religion is more akin to an American Law Institute Model Code or a Restatement of the Law. It does not only reiterate what exists in various jurisdictions of religion, but also helps to mold and shape those religions. The gravity of government-sponsored American Civil Religion pulls other religions towards it, threatening to turn the constellations of diverse traditions into a bland whole. If religions privately and spontaneously choose to meet on the shores of conformity, that is their choice, but the government ought not to be building a lighthouse to direct them. Further, American Civil Religion is indelibly linked to the concept of patriotism and the esoteric concept "America," and few religions wish to disassociate themselves with these secular virtues. Likewise, a society fed on lukewarm civil religion will have a tough time stomaching the spicy or chilled varieties of religion that are the staples of many sects.
Interestingly, some judges have viewed various elements of this civil religion as constitutional, because they are part of mere "ceremonial deism"46 and have "lost their original religious significance,"47 or even have "lost any true religious significance."48 Not only does this pronouncement strike some readers as odd,48 but it also highlights another fraud that American Civil Religion perpetrates on its legitimate brothers and sisters. In hijacking God for its own purposes, governmentally sanctioned civil religion dilutes the potency and distorts the conception of various religious ideas. Under what authority does a judge deliver a homily that desecrates and bastardizes fundamental tenets of organized religion? Is it too much to suppose that to some Americans the phrase "In God We Trust" still has some "true religious significance?"50
American Civil Religion acts to the detriment of all other religions, and it does so with impunity. A Baptist and an Atheist may express disagreement with its tenets, but they must do so in a private, non-governmental, forum. They may not add their symbols to the walls of a courtroom or ask the nation’s public school children to recite their creeds. No group, no matter how determined or well-funded, could distribute a religious tract or pamphlet with the scope and penetration that U.S. currency, emblazoned with "In God We Trust," enjoys. Organized religion and irreligion simply do not enjoy the same opportunities for promulgation that American Civil Religion does.
The courts have simply gotten it wrong. They pile up all the sticks and twigs of religious elements that have existed in our government for the last two centuries and then use that pile to justify the constitutionality of each individual stick. The end result is neither a masterpiece of logic nor constitutionally acceptable. It gets to the very heart of what the First Amendment seeks to protect, namely the "establishment" of religion by government. One can only hope that the Supreme Court will one day come to its senses and use this pile as the funeral pyre for American Civil Religion.
1 Daniel 3:3 (King James).
2 Pub.L. No. 396 (1954) (adding the words "under God" to the Pledge of Allegiance).
3 See Newdow v. United States Congress, 292 F.3d 597 (9th Cir. 2002).
4 See e.g., Lynch v. Donnelly, 465 U.S. 668, 677 (1984).
5 See e.g., Lee v. Weisman, 505 U.S. 577, 635 (1992) (Scalia, J., dissenting).
6 31 U.S.C. §324 (1983).
7 U.S. Const. Amend. I.
8 403 U.S. 602 (1971).
10 Id. at 612-13.
13 See, e.g., Lee, 505 U.S. at 644 (Scalia, J., dissenting) ("the so-called Lemon Test . . . which has received well-earned criticism from many Members of this Court").
14 505 U.S. 577 (1992).
15 Id. at 604.
16 465 U.S. 668 (1984).
17 Id. For a very odd extension of this analysis, see County of Allegheny v. ACLU, 492 U.S. 573 (1989) (invalidating municipal nativity scene where it was not a part of secular holiday display, but upholding the same village’s 18 foot Chanukah menorah where it was placed next to a Christmas tree).
18 Lynch, 465 U.S. at 625.
19 31 U.S.C. §324 (1983).
20 See Marsh v. Chambers, 463 U.S. 783 (1983) (upholding the constitutionality of opening legislative sessions with prayer led by a chaplain).
21 See, e.g., Lee, 505 U.S. at 635 (Scalia, J., dissenting).
22 See, e.g., Lynch, 465 U.S. at 675.
23 See, e.g., Lee, 505 U.S. at 620 (Souter, J., concurring).
24 See, e.g., Lynch, 465 U.S. at 677.
25 See, e.g., id.
26 See e.g., Sherman v. Comty. Consol. Sch. Dist. 21 of Wheeling Township, 980 F.2d 437, 446 (7th Cir. 1992).
27 See e.g. id.
28 See e.g. id. But see Lee, 505 U.S. at 616 n.3 (Souter, J., concurring) ("But this proves too much, for if the Establishment Clause permits a special appropriation of tax money for the religious activities of a particular sect, it forbids virtually nothing.")
29 36 U.S.C. §169(h) (1983).
30 See Walz v. Tax Comm’n of New York, 397 U.S. 664 (1970) (holding that ax exemptions for churches are constitutional).
31 See supra notes 16-17.
32 See Sherman, 980 F.2d 437 (where the Seventh Circuit held that recitation of the Pledge of Allegiance in school settings was constitutional); but see Newdow, 292 F.3d 597 (where the Ninth Circuit disagreed, holding that recitation of the Pledge of Allegiance in a school setting was unconstitutional).
33 See, e.g., Yehudah Mirsky, Note, Civil Religion and the Establishment Clause, 95 Yale L.J. 1237 (1986).
34 Id. at 1249.
35 Id. See also Mirsky, supra note 33 (quoting Bellah, Civil Religion in America, Daedalus, Winter 1967, at 24) ("there actually exists, alongside of and rather clearly differentiated from the churches, an elaborate and well institutionalized civil religion [i.e.] certain common elements of religious orientation that the general majority of Americans share [and that] have played a crucial role in the development of American institutions and still provide a religious dimension for the whole fabric of American life, including the political sphere").
36 Id. at 1249.
37 Lee, 505 U.S. at 589 ("We are asked to recognize the existence of a practice of nonsectarian prayer, prayer within the embrace of what is known as the Judeo-Christian tradition, prayer which is more acceptable than one which, for example, makes explicit references to the God of Israel, or to Jesus Christ, or to a patron saint.")
38 Id. at 590 (emphasis added).
39 See Mary Shelley, Frankenstein, The Modern Prometheus (Airmont Publishing Co. 1963) (1817).
40 See, e.g., Lynch, 465 U.S. at 701 n.6 (Brennan, J., dissenting) (noting that one citizen congratulated the mayor for including the crèche in the municipal holiday display because it served "to keep Christ in Christmas.")
41 See, e.g., Marsh, 463 U.S. at 819 (Brennan, J., dissenting) (stating that some people "would find a prayer not invoking the name of Christ to represent a flawed view of the relationship between human beings and God.")
42 Allegheny, 492 U.S. at 672 (Kennedy, J., dissenting).
43 See, e.g., Lynch, 465 U.S. at 696 (Brennan, J., dissenting) ("I am convinced that this case appears hard not because the principals of decision are obscure, but because the Christmas holiday seems so familar and agreeable.")
44 See generally Mirsky, supra note 33.
45 Lee, 505 U.S. at 589.
46 Lynch, 465 U.S. at 716 (Brennan, J., dissenting).
47 Sherman, 980 F.2d at 447.
48 Marsh, 463 U.S. at 818 (Brennan, J., dissenting).
49 See, e.g., Sherman, 980 F.2d at 448 (Manion, J., concurring) (asking whether other often repeated phrases, like "liberty and justice for all," lose their meaning over time, and answering that "a court cannot deem any words to lose their meaning over the passage of time.)
50 See supra note 48.
Ryan J. Dowd: North Central College, B.A. in Religious Studies (2000); Northern Illinois University, College of Law, J.D. (expected December 2003); Northern Illinois University, Master’s of Public Administration (expected May 2003). Mr. Dowd is a Lead Editor for the NIU Law Review and the Coordinator for the Hope Legal Assistance and Referral Clinic at Hesed House in Aurora, Illinois.