Legal Commentary

Last week in my law & religion seminar, we went over the Newdow case -- the infamous 9th circuit case holding that the words "under God" in the Pledge of Allegiance violate the Establishment Clause.  The Supreme Court mostly didn't reach the constitutional issue, ruling that Newdow didn't have standing, but Justice O'Connor did present a lengthy concurring opinion concluding that the phrase was part of our country's acceptable "ceremonial deism," like having "In God We Trust" on our coins -- a phrase coined by Justice Brennan in 1984.

O'Connor went out of her way to say that the point of ceremonial deism is not that it is de minimis, but that it has certain features: history/ubiquity, absence of worship/prayer, absence of reference to a particular religion, and minimal religious content.   So, even though "under God" surely flunks the Lemon test, O'Connor's own Endorsement test, and some understandings of the Neutrality principle, its status as "ceremonial deism" makes it OK.

Brennan's original formulation, though, is a bit more limited: for him, statements of ceremonial deism are those which "have lost through rote repetition any significant religious content." 

Brennan specifically included the Pledge's "under God" as an example of ceremonial deism.  But here's my question:  given the false allegations about Barack Obama's religion, and his willingness/unwillingness to say the pledge of allegiance, I wonder if "under God" is really devoid of religious content after all?   More after the jump.

Ceremonial deism is essentially meant to be a meaningless gesture that's been longstanding and of minimal religious content.  Now, "content" isn't the same as "import."  A statement may be very low in content but very high in import.  But is it really accurate to measure content by number of words and theological propositions?  Scholars of religion regularly observe that mere gestures, such as movements of the hand, can have enormous religious content, even without any words at all.  "Content" is determined by context and symbol, not just verbiage.

I've been interested for a long time in how changes in culture can lead to changes in constitutional terms.  For example, I argued, pre-Lawrence, that changes in cultural understandings of "family" had caused sodomy to become included within the family's 'zone of privacy.'  Now, I wonder if the same process may be afoot.  Insofar as the Pledge itself is connected to both religion and nationalism, I wonder if "under God" in the Pledge in fact has significant religious content, as evidenced by the anti-Obama smear, its blending of God and Country, and its disturbing resilience in some circles.

Even the outrage that greeted Newdow itself to me indicates that "under God" is meaningful.  Those words are important to people because they say something, and the something they say is indeed significantly religious.

If not saying something means so much, then doesn't saying it mean equally as much?