Legal Commentary

Steve Smith asks, over at the new Law, Religion, Ethics blog, whether we are seeing, in the Ninth Circuit's decisions rejecting First Amendment challenges to the Pledge and to the National Motto, the "end" of the Court's "endorsement test."  (I note, by the way, that among the virtues of Law, Religion, Ethics is that it has resulted in more things to read by Prof. Smith.)  He writes:

I wonder whether this decision is a manifestation of the end of the ?no endorsement? doctrine? a doctrine that originated in the mid-80s and that, while attractive on one level, is just so manifestly incongruent with so much in the American political tradition (including much that is revered, such as Jefferson?s Virginia Bill for Religious Freedom, the Declaration of Independence, Lincoln?s magnificent Second Inaugural Address, and expressions of probably every President from Washington to Obama) that it just couldn?t be consistently adhered to.  Pretending to adhere to it often has led merely to rationalizations that are palpably implausible (such as Justice O?Connor?s explanation at an earlier point in this case of how ?under God? really doesn?t send a message endorsing religion).  Maybe it?s time for courts to acknowledge that the ?no endorsement? experiment, though well intentioned, just hasn?t worked out, and it should be abandoned.  We can hope? I can, anyway? that yesterday?s decision is a step in that direction.

My own view, for what it's worth, is that the reason why it is (or, at least, should be) constitutionally permissible to include the words "under God" in the Pledge is not because the Pledge (with these words included) does not involve any "religious" affirmations or claims, and is not because the government may be deemed to stand at a sufficiently ironic or neutral distance from such affirmations or claims, but is because whatever religious affirmations or claims the Pledge (with these words included) involves are ones that our Constitution permits the government -- that is, the political community -- to "endorse."