Footnote 22 may not only have been unnecessary, however, it is unfortunate for another reason. Constitutional doctrine protecting and promoting religious liberty and equality is always going to involve a fair amount of uncertainty if we take these values seriously. Constitutional guarantees have costs and for this area of the law, a lack of clear guidelines and resulting unpredictability is one of those costs. We may be able to do a better job than we have done in mitigating this problem over the last few years, but the problem is always going to be there -- if we take these constitutional values seriously.
When judges bemoan the indeterminacy of current case law and ask for more certainty in the law, they should be careful what they wish for. Holding that religious conduct receives no constitutional protection whatsoever against neutral laws of general applicability is a very clear rule that leads to easily predictable results. It accomplishes that certainty by not protecting religious liberty. Similarly, a rule that permits the government to endorse the religious beliefs of the majority and ignore or disparage the beliefs of minorities is a pretty clear rule. We simply allow the polity, or their elected representatives, or elected or appointed
officials to chose which religions and beliefs the state will endorse. Here, we achieve clarity and predictability by sacrificing religious equality (as well as religious liberty).
There are trade-offs here -- and if a person isn't careful sometimes he can end up trading his birthright for pottage.
Alan Brownstein
UC Davis
At 09:06 PM 9/14/2005 -0400, you wrote:
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I agree with Anthony that fear of McCreary County likely led the court to take refuge in the court of appeals' prior decision in Newdow. But perhaps the district court need not have worried about applying McCreary and van Orden, or any of the other difficult-to-reconcile decisions of the SCOTUS involving state religious _expression_ outside primary and secondary schools. This case involves young children in the classroom, and thus it ought to be governed by an unbroken line of school cases beginning with Engel, ending with Santa Fe, and including, most importantly, Lee v. Weisman. Here's what I and my co-counsel wrote in an amicus brief in Newdow (http://pewforum.org/religion-schools/pledge/docs/ADL.pdf):
_______________________________________________
- In a series of cases spanning almost a half-century, this Court has considered the constitutionality of various forms of state-initiated, or state-approved, religious _expression_ and teaching in primary and secondary public schools. See, e.g., Engel v. Vitale, 370 U.S. 421 (1962); School Dist. of Abington Township v. Schempp, 374 U.S. 203 (1963); Epperson v. Arkansas, 393 U.S. 97 (1968); Stone v. Graham, 449 U.S. 39 (1980) (per curiam); Wallace v. Jaffree, 472 U.S. 38 (1985); Edwards v. Aguillard, 482 U.S. 578 (1987); Lee v. Weisman, 505 U.S. 577 (1992); Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000). In each of those cases, the Court has held that the Religion Clauses of the First Amendment prohibited the public schools from teaching students religious precepts, or inducing students to engage in prayer.
- The explanation for this unbroken line of decisions involving state-initiated religious _expression_ in public schools is straightforward namely, that young students are impressionable, and are susceptible to embracing the views, beliefs, and norms that their schools (and their teachers) prescribe. Outside the context of religious _expression_ and teaching, the likelihood that students will embrace much of what they are taught is constitutionally tolerable, and generally does not call into question the States attempt to persuade its charges to learn certain truths, or to adopt certain values or lessons at least as long as the students are not required to affirm the States preferred beliefs and ideas, see West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943), and are permitted to seek their education outside the public schools, see Pierce v. Society of Sisters, 268 U.S. 510 (1925). Indeed, it is one of the principal functions of public schools to inculcate in students certain knowledge, skills, and civic values. Thus, [b]y the time they are seniors, high school students no doubt have been required to attend classes and assemblies and to complete assignments exposing them to ideas they find distasteful or immoral or absurd or all of these. Lee, 505 U.S. at 590-91.
- The constitutional problem is fundamentally different, however, and the possibility of constitutional harm more pronounced, when it comes to a schools inculcation of religious beliefs and values, for, as this Court explained in Lee, [t]he First Amendments Religion Clauses mean that religious beliefs and religious _expression_ are too precious to be either proscribed or prescribed by the State. Id. at 589. For that reason, it is a timeless lesson of the Religion Clauses that if citizens are subjected to state-sponsored religious exercises, the State disavows its own duty to guard and respect that sphere of inviolable conscience and belief which is the mark of a free people. Id. at 592. Just as in Lee, the present case implicates state-prescribed religious affirmation in public primary and secondary schools. Accordingly, as in Lee, the controlling precedents of this Courts public-school cases lead inexorably to the conclusion that the religious affirmation that the Elk Grove School District prescribes, as an integral part of a daily patriotic exercise, violates the Religion Clauses and such a holding follows straightforwardly from the Courts school cases without reference to [the Courts Religion Clause] principles in other contexts. Id. at 586.
- Therefore, this case, like Lee, does not require [the Court] to revisit the difficult questions dividing [the Justices] in recent cases involving Religion Clause questions outside the public-school context. Id. Thus, for example and contrary to what the United States implies, see Brief for the United States as Respondent Supporting Petitioners (U.S. Br.) at 26-31 this case does not require the Court to resolve difficult issues concerning other official governmental invocations of God or religion outside the school context (such as the currency notation In God We Trust or this Courts tradition of beginning each session with the words God Save the United States and this Honorable Court), let alone official acknowledgments of the role of religion in the Nations history, or other historical facts. Indeed, this case does not even present any broader questions concerning the Pledge itself, such as whether it is constitutional when recited by government officials with an adult audience outside the public schools; nor does the case require the Court to opine on the constitutionality of the federal statute, 4 U.S.C. § 4, codifying (but not requiring anyone to recite) a particular version of the Pledge.
- ----- Original Message -----
- From: Anthony Picarello
- To: Law & Religion issues for Law Academics
- Sent: Wednesday, September 14, 2005 8:45 PM
- Subject: RE: New Pledge of Allegiance Case,and precential effect of Ninth Cir cuit's earlier Newdow decision
- I think the best explanation for the district judges decision to rely on the 9th Circuit opinion is his own (remarkably candid) explanation. It appears in fn22, at the very end of the opinion. For convenience, Ive cut and pasted it below:
- 22 This court would be less than candid if it did not
- acknowledge that it is relieved that, by virtue of the disposition
- above, it need not attempt to apply the Supreme Courts recently
- articulated distinction between those governmental activities which
- endorse religion, and are thus prohibited, and those which
- acknowledge the Nations asserted religious heritage, and thus
- are permitted. As last terms cases, McCreary County v. ACLU, 125
- S.Ct. 2722, 2005 WL 1498988 (2005) and Van Orden v. Perry, 125
- S.Ct. 2854, 2005 WL 1500276 (2005) demonstrate, the distinction is
- utterly standardless, and ultimate resolution depends of the
- shifting, subjective sensibilities of any five members of the High
- Court, leaving those of us who work in the vineyard without
- guidance. Moreover, because the doctrine is inherently a boundaryless
- slippery slope, any conclusion might pass muster. It might
- be remembered that it was only a little more than one hundred ago
- that the Supreme Court of this nation declared without hesitation,
- after reviewing the history of religion in this country, that this
- is a Christian nation. Church of the Holy Trinity v. United
- States, 143 U.S. 457, 471 (1892). As preposterous as it might
- seem, given the lack of boundaries, a case could be made for
- substituting under Christ for under God in the pledge, thus
- marginalizing not only atheists and agnostics, as the present form
- of the Pledge does, but also Jews, Muslims, Buddhists, Confucians,
- Sikhs, Hindus, and other religious adherents who, not only are
- citizens of this nation, but in fact reside in this judicial
- district.
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