"Under God"

Conkle, Daniel O. conkle at indiana.edu
Thu Apr 1 22:36:38 PST 2004


Thanks to Alan for his thoughtful response. 

As I read the Arlington Hts. analysis, a law will be found to have a
constitutionally illicit purpose (i.e., a racial purpose) if that
purpose was *in fact* a determinative factor in the enactment of the
law, i.e., if the law would not have been enacted in the absence of that
motivation.  That a licit (non-racial) rationale might have been
*possible* for the law is not itself enough.  See Hunter v. Underwood.
If this type of Equal Protection analysis were carried over to the
Establishment Clause questions being addressed here, the question
presumably would be whether the Virginia Bill for Religious Liberty, or
the Civil Rights Act of 1964, etc., would have been enacted in the
absence of a religious purpose.  If not, then the argument might be that
these laws violate the Establishment Clause, or perhaps that they
violate the Establishment Clause if they make their religious predicate
explicit, as in the Virginia Bill.  See Mark Modak-Truran's argument.

Mark Tushnet, among others, has suggested (I'm oversimplifying) that the
existence of a possible secular rationale -- whether or not that
rationale in fact motivated a law -- should be enough to save the law
from infirmity.  Whether the existence of a possible secular rationale
should be enough even if a law explicitly relies on a religious claim
might be a separate question.  See Alan's concerns about endorsement.
But if a religion-endorsing rationale for lawmaking is problematic, then
why limit the argument to those cases in which the religious predicate
is made explicit in the text of the law or its preamble?  Why not look
to the underlying history of a law,  at least if that history is readily
apparent?  If a law would not have been enacted but for a religious
rationale, might not the governmental endorsement of religion be equally
clear and (on this theory) equally problematic?  If one were to take
this additional step, however, one might be drawn to the remarkable
conclusion that the Religion Clauses themselves are unconstitutional
because they would not have been enacted in the absence of a religious
rationale!  Steve Smith developed this intriguing point in a Univ. of
Penn. article some years ago.

Dan Conkle
**************************************
Daniel O. Conkle
Professor of Law
Indiana University School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
e-mail conkle at indiana.edu
**************************************


-----Original Message-----
From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of A.E. Brownstein
Sent: Thursday, April 01, 2004 6:21 PM
To: Law & Religion issues for Law Academics
Subject: RE: "Under God"


My argument (or more accurately my questions) aren't limited to the
public 
school context. But I think the issue of religious rationales for laws 
raises several complications that don't exist when religious teachings
in 
public schools are challenged.

If a law has a religious rationale in its preamble, and that preamble 
declares a religious truth, I think there are several possible
challenges 
that could be brought against it. One argument is that the law lacks a 
secular purpose. I have no doubt that the kinds of laws you and Tom are 
talking about (civil rights laws and religious liberty statutes) serve a

legitimate secular purpose. The fact that they can be justified by a 
religious rationale doesn't suggest that they can only be justified by a

religious rationale. So the question would be whether the fact that the
law 
states that it is justified by religious reasons requires the law to be 
struck down -- even though the law transparently serves secular purposes
as 
well. If we use equal protection doctrine as a guideline, the answer
would 
be that the law should not be struck down. Even if plaintiff proves a
law 
is invidiously motivated, the law will be sustained if the state can 
establish that it would have enacted the same law anyway -- even if the 
impermissible motive had not influenced the legislature (the Arlington 
Heights causation rebuttal).

If the challenge is grounded on the endorsement test, one might fairly 
argue that it is the preamble itself, rather than the substantive
content 
of the religiously justified law, that arguably endorses religion. I
don't 
know if it makes sense to challenge the message communicated in a
preamble, 
but it isn't hard to think of hypotheticals that suggest that we should.

Suppose a law's preamble begins "Because the legislature recognizes the 
Catholic Church as the official Church of the United States ... " or 
"Because the tenets of the Methodist Church represent the only true
faith . 
. ."  If a state resolution proclaiming a particular religion as the one

true faith violates the Establishment clause, perhaps using such a 
resolution to introduce and rationalize a law is also unconstitutional.

With regard to your specific example regarding Jefferson's Bill for 
Religious Liberty, I tend not to be persuaded by historical examples. I 
think the history of American constitutional law is basically the story
of 
a society that has become more and more inclusive over time. More
limited 
understandings of who deserves respect from government get replaced by 
broader and broader understandings. At the time of Jefferson's bill,
when 
the U.S. was very much a Christian nation, Jefferson's preamble was
pretty 
inclusive. Today, I think there are legitimate questions about whether a

phrase like "under God" continues to be adequately inclusive. Maybe it
is 
still acceptable. But the fact that generic references to G-d were
deemed 
not only satisfactory but progressive 200 years ago doesn't answer the 
question for me.


Alan Brownstein
UC Davis


At 02:13 PM 4/1/2004 -0500, you wrote:
>Alan, a question of clarification:  Is your argument limited to the
>public school context?  I notice that you didn't respond to the
question
>about Jefferson's Bill for Religious Liberty.
>
>Dan Conkle
>**************************************
>Daniel O. Conkle
>Professor of Law
>Indiana University School of Law
>Bloomington, Indiana  47405
>(812) 855-4331
>fax (812) 855-0555
>e-mail conkle at indiana.edu
>**************************************
>
>
>
>-----Original Message-----
>From: religionlaw-bounces at lists.ucla.edu
>[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of A.E.
Brownstein
>Sent: Thursday, April 01, 2004 1:25 PM
>To: Law & Religion issues for Law Academics
>Subject: RE: "Under God"
>
>
>I appreciate Tom's timely response -- but I'm certainly willing to wait
>for
>a response to this post until Tom completes his travels.
>
>I have considerable sympathy for Tom's suggestion that if including
>"under
>God" in the pledge is unconstitutional,  we ought to consider
>"alternatives
>like a pause to
>allows students (with their parents' guidance) to add the phrase they
>feel
>is appropriate" rather than just striking "under God" from the pledge.
>(I
>have made analogous suggestions regarding the issue of religious
>messages
>and prayers at graduation ceremonies.)
>
>Putting doctrine aside for the moment, I think the goal of the public
>schools should be to provide an environment where children of different
>religious faiths and no faith can study and learn together on the basis
>of
>equal worth and mutual respect. Patriotic exercises in school should be
>accessible to children who do not believe in G-d and cannot in good
>conscience affirm G-d's existence and children "who cannot pledge
>loyalty
>to the nation without explicitly stating that it is under God."  I
>mooted
>Mike Newdow twice before the oral argument and pressed him hard on how
>schools could direct a patriotic exercise that worked for both
believers
>
>and non-believers.
>
>But I think the question of religious rationales is another matter.
With
>
>respect, I'll ask Tom again to clarify for me what he means when he
says
>
>that the state can communicate a religious rationale for its laws. Or
>more
>precisely, exactly what does the religious rational mean? Is it
>declaring a
>religious truth that serves to justify the law? (The government finds
as
>
>fact that there is a transcendent reality that confers inalienable
>rights
>on individuals.) Is this the official position of the government on a
>religious question? Or does the religious rational describe the fact
>that
>many of the legislators who voted for the bill believe in a
transcendent
>
>reality on which basic rights are grounded?
>
>If the answer to the first two questions is "Yes", the next question is
>whether that fact or government position can be taught in the public
>schools. Let us leave aside the question of whether students can be
>directed to personally affirm their belief in or acceptance of these
>statements, for the moment. May students be taught as fact that there
is
>a
>transcendent reality that confers rights on individuals or that the
>government has an official position on this religious question?
>
>Most importantly, if the government can teach this religious assertion
>as
>truth or take an official position on this religious question, to what
>extent can the government teach other religious truths or take other
>official positions on religious matters. I do not raise this question
>for
>slippery slope purposes. As our list moderator has demonstrated in a
>very
>good article, the persuasiveness of slippery slope legal arguments vary
>a
>great deal. I want to get a picture of what is permitted under this
>analysis and that means I need to know the criteria that should be used
>to
>determine which religious truths may be taught in public schools and
>which
>are the religious disputes on which the government can take an official
>position.
>
>Alan Brownstein
>UC Davis
>
>
>
>At 10:12 AM 4/1/2004 -0600, you wrote:
> >Quick response to Alan while I'm traveling -- quicker than he
deserves
>--
> >but I don't want delay to worry him about my position!   :)
> >
> >I think that the general, cryptic nature of "under God" arguably
helps
>it
> >(as I've said, I'm ambivalent about some of these points) because it
> >fortifies the idea that the state is essentially making a political
> >statement about human rights ("liberty and justice") and offering no
>more of
> >a religious rationale than is necessary to express the basic idea
that
>these
> >rights are grounded in some transcendent reality.  The state is
>pointing
> >toward someting that it acknowledges it cannot describe the specific
>reality
> >of -- and must leave that to individuals and private groups.  But it
>does go
> >far enough to acknowledge some reality of higher status that limits
it
>and
> >confers on human beings an inalienable dignity.
> >
> >If it is unconstitutional for the state to express such a view, then
I
>would
> >ask Alan too whether such an expression in the findings of the Civil
>Rights
> >Act would be invalid.  Or to reiterate Dan Conkle's question, is
>Jefferson's
> >Religious Freedom Statute, a landmark in American religious freedom,
a
> >violation of the Establishment Clause.
> >
> >Again, I acknowledge that having students recite this may be
>importantly
> >different from the state, or the school, expressing it.  There are,
of
> >course, opt-outs under Barnette, but perhaps they are not sufficient
to
> >protect the dissenter in this context.
> >
> >If opt-outs are insufficient on that score, however, I suggest that
we
> >should see them as insufficient to protect the believer who cannot
>pledge
> >loyalty to the nation without explicitly stating that it is under
God.
>(In
> >some ways, the situation is worse for the believer; a non-believer
can
>more
> >easily omit the phrase while others say it, than a believer can
> >affirmatively add it when there is no room provided for it.)  For
that
> >reason, I think that simply taking out "under God" is, at best, no
>better
> >than simply leaving it in.  And I suggest alternatives like a pause
to
> >allows students (with their parents' guidance) to add the phrase they
>feel
> >is appropriate.
> >
> >Tom
> >
> >
> >
> >
> >
> >
> >
> >
> >
> >   _____
> >
> >From: A.E. Brownstein [mailto:aebrownstein at ucdavis.edu]
> >Sent: Wed 3/31/2004 11:44 AM
> >To: Law & Religion issues for Law Academics
> >Subject: RE: "Under God"
> >
> >
> >
> >I'm not sure that I understand Tom's argument. (I admit that I have
not
>yet
> >read his article.)
> >
> >Let us put aside the historical question. If the only thing the
pledge
>does
> >is to accurately describe the beliefs of Americans at the time of the
> >revolution, there is nothing constitutionally problematic about it --
>no
> >matter what those beliefs might be. I don't think the pledge can be
> >reasonably interpreted to be an historical statement. But if that is
>what
> >it is -- a statement about what the framers and founders believed --
it
>is
> >hard to see a constitutional problem with it.
> >
> >I'm not sure what Tom means when he suggests that government may rely
>on a
> >religious rationale for basic rights and, therefore, may include the
>term
> >"under God" in the pledge. Tom, what exactly does it mean for a
>government
> >to have a religious rationale for something. I assume a rationale is
>either
> >a statement of fact used to justify some state action or it is a
>statement
> >of value. I also assume that government can not teach public school
> >students that it is good or necessary for them to accept particular
> >religious beliefs. So that leaves fact-based rationales. I don't
think
>Tom
> >is suggesting that the government may teach a religious rationale to
>public
> >school students as fact. Surely, the state can not direct children to
> >recite the following, not as an affirmation of faith, but as a
>statement of
> >fact: "Jesus Christ is the Lord and Savior of mankind. Jesus teaches
> >............(All men are created equal etc.) These teachings are the
> >foundation for the basic rights protected by the Constitution."  I
>assume
> >Tom thinks it would be unconstitutional to teach this in public
>schools.
> >(If I'm wrong, I'm sure he will let me know promptly.) Government can
>not
> >declare and teach children religious truth.
> >
> >The message in the pledge purports to be more universal and less
>religion
> >specific than the above statement. (G-d exists. G-d's teachings are
the
> >foundation for our basic rights.) But if we are really communicating
a
> >religious rationale for basic rights, I think we have to say a lot
more
> >than that government is under a higher authority. The Tories in 1776
>who
> >thought that Jefferson and the other signatories of the Declaration
of
> >Independence should be hanged were equally committed to the idea of a
> >government "under G-d". So was George III. But they thought that
>government
> >was a monarchy. There are lots of governments throughout history and
in
>the
> >world today that claim to be operating "under G-d" but which are not
at
>all
> >committed to the basic liberty and equality rights the U.S.
>Constitution
> >recognizes and protects. I think a religious rational for basic
rights
>has
> >to refer to a specific understanding of G-d, to a G-d with a distinct
> >message and commands. One can not insist that the pledge refers to an
> >indeterminate generic higher authority and at the same time argue
that
> >belief in that higher authority commits us to certain specific
>principles.
> >
> >But if that is correct, government can not declare such a rationale,
a
> >specific understanding of G-d, to constitute truth, can it? It may
well
>be
> >that certain religious beliefs are more conducive to having a
>democratic
> >government that respects basic rights than other beliefs. But that
does
>not
> >mean that government can declare those beliefs to be true and teach
>them to
> >children in public schools, does it? Can it teach students that
>acceptance
> >of, let's say, Protestant religious beliefs provides the strongest
> >foundation for a society committed to basic rights?
> >
> >Alan Brownstein
> >UC Davis
> >
> >
> >
> >
> >
> >At 07:06 PM 3/30/2004 -0600, you wrote:
> > >Bobby Lipkin presents an argument that government can be humane, in
>the
> > >sense of not inflicting suffering or cruelty -- and, would he add,
>can
> > >recognize something called basic rights? -- without the government
> > >acknowledging that it is "under" some higher moral authority.
>Perhaps that
> >
> > >is true, but there are also arguments the other way -- for example,
>that
> > >basic rights are far more likely to be secure, especially in times
of
> > >pressure, if they are grounded in government's recognition that it
is
>a
> > >limited institution and is under some higher moral authority.  Even
>if
> >Bobby
> > >raises enough questions to prove that government *need* not rely on
>this
> > >latter rationale to ground rights, that doesn't prove that the
>government
> > >*may* not determine to rely on this rationale.
> > >
> > >In my view, this is the most powerful rationale for upholding the
>inclusion
> >
> > >of "under God" in the Pledge.  It is, under this argument, a
>permissible
> > >recognition of a religious rationale for basic rights (for "liberty
>and
> > >justice for all"):  that government is a limited institution
subject
>to a
> > >moral authority of a higher order.  If (as I would argue) the
>government
> >may
> > >rely on a religious rationale for passing legislation such as the
>Civil
> > >Rights Act of 1964, or debt relief for developing nations, then it
>also
> > >ought to be able to rely on a religious rationale for basic rights
>more
> > >generally.  (That includes religious freedom, which originally
rested
> > >heavily on religious rationales as was referred to in Dan Conkle's
>first
> > >post.)
> > >
> > >The counterargument that gives me pause -- and makes me ambivalent
>about
> >the
> > >Newdow case -- is that the Pledge does not merely articulate a
>religious
> > >rationale for liberty and justice, but calls on citizens to affirm
>that
> > >rationale (even if it doesn't engage in full-fledged coercion).
> > >
> > >Tom Berg
> > >University of St. Thomas School of Law (Minnesota)
> > >
> > >
> > >
> > >   _____
> > >
> > >From: RJLipkin at aol.com [mailto:RJLipkin at aol.com
><mailto:RJLipkin at aol.com> ]
> >
> > >Sent: Tue 3/30/2004 9:10 AM
> > >To: religionlaw at lists.ucla.edu
> > >Subject: Re: "Under God"
> > >
> > >
> > >In a message dated 3/30/2004 8:50:27 AM Eastern Standard Time,
> > >francis.beckwith at mac.com writes:
> > >
> > >So, it can put in the form of a question: If not "under God," then
>under
> > >what?
> > >
> > >         Why must there be an "under" anything? Although the
>existential
> > >condition of being "under" nothing might generate a certain anxiety
>at
> > >(possibly) being alone in the universe, that only explains (for
some)
>why
> > >the human spirit seeks such a reality.  It does not explain why we
>must be
> > >"under" something rather than nothing. Additionally, I do not see
how
>our
> > >being "under" anything is necessary for either morality or for
> > >constitutional government. Many of us seek constitutional
government
> >because
> > >we see it as better than most alternatives, where "better" has an
> > >appropriately modest meaning, namely, decreases the degree of
>suffering and
> >
> > >cruelty in the world, and does so as judged from our perspectives
or
>from
> > >our lights. As a first principle (again for some) decreasing the
>degree of
> > >suffering and cruelty in the world cannot be justified without
>circularity.
> >
> > >However, with all due respect neither can the proposition that we
>should
> > >decrease suffering and cruelty (or adhere to any other moral code)
>because
> > >some independent reality deems that we should.
> > >
> > >         First principles, whether embracing the need for an
>independent
> > >reality to justify who we are and what we do or whether we reject
>such a
> > >reality, are just that first, and as Wittgenstein, and then others
>after
> > >him, have indicated, justification must come to an end at some
point,
>and I
> >
> > >would add it must come to an end for anyone and everyone.
> > >
> > >
> > >Bobby
> > >
> > >Robert Justin Lipkin
> > >Professor of Law
> > >Widener University School of Law
> > >Delaware
> > >
> > >_______________________________________________
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