Symbols and Civil Religion

Courts Have Tended To Uphold ‘Ceremonial’ Uses Of Religion By The Government, But Critics Say It’s Time To Reassess

Some very powerful people in the United States see absolutely nothing wrong with generalized government endorsement of religious belief.

“I think the main fight is to dissuade Americans from what the secularists are trying to persuade them to be true: that the separation of church and state means that the government cannot favor religion over non-religion,” U.S. Supreme Court Justice Antonin Scalia said in an Oct. 1 speech at Colorado Christian University. “We do Him [God] honor in our Pledge of Allegiance, in all our public ceremonies. There’s nothing wrong with that. It is in the best of American traditions, and don’t let anybody tell you otherwise. I think we have to fight that tendency of the secularists to impose it on all of us through the Constitution.”

Scalia, a staunch Catholic known for his hostility toward strict church-state separation, has at times promoted a doctrine called “ceremonial deism” – a term generally interpreted to mean government endorsement of generic forms of religion for mostly ceremonial purposes.

Ceremonial deism, also sometimes called “civil religion,” is a phrase coined by Eugene Rostow, former dean of Yale Law School, in a 1962 lecture. Rostow defined the term as government-sponsored religious speech that was “so conventional and uncontroversial as to be constitutional.”

The term was cited by the U.S. Supreme Court in the 1984 case Lynch v. Donnelly. In that 5-4 decision, the high court said a government-sponsored nativity scene that also included reindeer and candy canes was constitutional.

In Lynch, the phrase actually appeared in the dissent by Justice Wil­liam Brennan. Although generally a strong supporter of church-state separation, Brennan wrote that some religious displays could be permissible under the First Amendment. He asserted that certain official mentions of a deity, including the use of “In God We Trust” as the national motto, “can best be understood, in Dean Rostow’s apt phrase, as a form of ‘ceremonial deism,’ protected from [legal] scrutiny chiefly because they have lost through rote repetition any significant religious content.”

But much has changed since Rostow’s speech and even since the Lynch ruling. An America that was once largely Protestant and church-going has become more diverse and more secular; church membership rates have plummeted, and growing numbers of Americans call themselves “spiritual but not religious.” In light of these changes, more and more critics are asking if ceremonial deism has outlived its usefulness – and if it ever had any.

Over the years, the concept has been employed by the Supreme Court and lower federal courts to create carve-outs and exemptions for government-sponsored religion. That has led to an increase in official endorsement of faith over non-faith, with some opponents arguing that the nation’s de facto established religion is a watered-down endorsement of a generic god.

The high court seems to allow this creeping ceremonial deism based on the assumption that no one is truly harmed by it. But as the nation becomes more diverse and the percentage of “nones” – those who say they hold no formal religious beliefs – continues to rise, more and more people are questioning the assertion that generic religiosity isn’t a problem.

“Nearly everyone is harmed by ceremonial deism rulings,” Roy Speckhardt, executive director of the American Humanist Association, told Church & State. “Atheists and humanists are considered second-class citizens whose families’ opinions are disregarded in an attempt to appease the majority. Progressive religious folks who don’t want government intruding into the religious sphere are ignored. Strongly faithful folks see their faith diminished as ceremonial.”

As the concept of ceremonial deism grew, it was seized upon by the conservative wing of the court to put a stamp of approval on questionable practices that go way beyond a reference to God on a dollar bill. 

When the Supreme Court considered the Americans United-sponsored case Town of Greece v. Galloway last year and ultimately decided that local governments may open meetings with prayers that are predominantly Christian, it did so partly on the basis of America’s supposed “tradition” of legislative prayer.

Writing for the 5-4 majority, Justice Anthony Kennedy opined, “Legislative prayer, while religious in nature, has long been understood as compatible with the [First Amendment].”

Kennedy noted that an early Senate chaplain, the Rev. William White, “gave prayers in a series that included the Lord’s Prayer, the Collect for Ash Wednesday, prayers for peace and grace, a general thanksgiving, St. Chry­­sostom’s Prayer, and a prayer seeking ‘the grace of our Lord Jesus Christ, &c.’ The decidedly Christian nature of these prayers must not be dismissed as the relic of a time when our Nation was less pluralistic than it is today.”

White, an Episcopalian who was the first Bishop of Pennsylvania, became Senate Chaplain in 1790 and served in that post until 1800.  In Kennedy’s mind, being one of the first in that position apparently gave White the right to establish prayer protocol for the next 200 years – even though the Constitution grants no government employees such privilege.

Michael I. Meyerson, a law professor at the University of Baltimore whose book Endowed by Our Creator: The Birth of Religious Freedom in America, was quoted (or in Meyerson’s view, misquoted) by Kennedy in his Greece opinion, told Church & State that the high court got it all wrong.

Greece, that’s just an easy case,” Meyerson said. “Everyone agrees that’s a bad decision.”

The reason the Supreme Court got it wrong, Meyerson said, is because of a failure by the majority of the justices to distinguish between respectful and disrespectful intent. Meyerson said he thinks some forms of ceremonial deism are respectful and therefore are permissible under the Constitution, such as when sessions of the Supreme Court open with a traditional chant that ends in “God save the United States and this honorable court!” But when the town of Greece chose to open its meetings with predominantly Christian prayers, that was another matter.

“There is no doubt the town of Greece was wrong because there is no doubt it was forcing religion on its citizens,” Meyerson said.

It is in this world governed by ceremonial deism and tradition that we now reside – and that isn’t always a good thing for anyone who values church-state separation.

Among the best-known “traditions” in the United States is the National Day of Prayer (NDP). The NDP dates all the way back to 1952, when President Harry S. Truman signed a joint congressional resolution to create it. But it was not until 1988 that President Ronald W. Reagan signed a law establishing the NDP on the first Thursday in May. Since then, presidents have issued a proclamation on that day annually in which they encourage the entire nation to pray to God.

In 2014, President Barack Obama’s proclamation read in part, “I invite the citizens of our Nation to give thanks, in accordance with their own faiths and consciences, for our many freedoms and blessings, and I join all people of faith in asking for God’s continued guidance, mercy, and protection as we seek a more just world.”    

These types of government-backed calls to prayer are common at the state level as well. In conjunction with the NDP, governors typically issue prayer proclamations of their own. Critics say these are every bit as problematic as the president’s version because they encourage citizens, even non-believers, to pray and engage in other religious activities. The implication, secular-minded people say, is that those who choose not to participate are somehow lesser citizens.

In Colorado, for example, Gov. John Hickenlooper’s 2013 proclamation described prayer as a unifying force – and included a Bible verse.

The official proclamation lauded that the theme of the 2013 prayer day was “Pray for America” and noted that it was “supported by Matthew 12:21, which reminds us that ‘in His name nations will put their hope.’”

It went on to declare that “on this day, individuals across the state and nation will unite in prayer for our country, our people and our leaders….”

There are even some local-level proclamations. Consider a recent case in Alabama, in which a town proclaimed that it has a celestial landlord. In December, the Winfield City Council unanimously passed a resolution that “God is the owner of the City of Winfield and that it is a City under God. We acknowledge that at all times, He is in control.”

Although Winfield is a town of just 4,600 people, not everyone there was receptive to the council’s message. Adam Adkins, a resident who identifies as atheist, told Church & State that he now feels unwelcome in the community.

“The moment that Winfield declared Christianity for its citizens is, by default, the moment that the government acknowledged other religions are wrong, thus making the individuals following those religions second-class citizens,” he said.

Mayor Randy Price nonetheless explained this bizarre declaration to the news website AL.com: “I feel like we need to stand up for what is right. Our forefathers said ‘One nation under God’ and we went so far away from that. There are not enough godly people involved in day-to-day decisions.”

Price, like a lot of Americans, seems confused about the origins of  the phrase “One Nation Under God.” Contrary to his assertion, “under God” wasn’t added to the Pledge of Allegiance until 1954, and “In God We Trust” didn’t become the national motto until 1956 – more than 100 years after the Founding Fathers had died.

This inconvenient history hasn’t prevented some politicians from slapping “In God We Trust,” on as many city and county seals as they are able. One of the leaders of this movement is Jacquie Sullivan, a member of the city council in Bakersfield, Calif. Almost 15 years ago, Sullivan decided that every U.S. city and county should display signs reading, “In God We Trust.”

Sullivan got started by promoting the idea to local officials in her home state, but soon the movement had gone nationwide through a group she formed called In God We Trust-America, Inc. Sullivan has been very successful: At press time, her group’s website reported that 480 cities and counties display “In God We Trust” in some form.

Of course, not everyone agrees with Sullivan and her allies. In Allegheny County, Pa., for example, the county council voted 8-6 in 2014 not to display “In God We Trust” at the county courthouse.

Still others are taking to the courts to push back against ceremonial deism and supposed traditions of prayer – but without success. Atheist activist Michael Newdow has contested several instances of the federal government’s endorsement of belief over non-belief, including multiple lawsuits throughout the 2000s over the “In God We Trust” motto, “under God” in the Pledge of Allegiance and official prayers at presidential inaugurations.

Although the cases have not been successful, they do provide an insight into how courts view ceremonial deism. Increasingly, they are arguing that the use of phrases that contain references to a deity aren’t really religious!

“We hold that the Pledge of Allegiance does not violate the Establishment Clause because Congress’ ostensible and predominant purpose was to inspire patriotism and that the context of the Pledge – its wording as a whole, the preamble to the statute, and this nation’s history – demonstrate that it is a predominantly patriotic exercise,” said the 9th U.S. Circuit Court of Appeals in a majority opinion for Newdow v. Carey in 2010. “For these reasons, the phrase ‘one Nation under God’ does not turn this patriotic exercise into a religious activity.”  

The following year, a panel of judges from the same appeals court dimissed a challenge to “In God We Trust” on U.S. currency. In the decision for Newdow v. Lefevre, Judge Carlos Bea wrote that the motto has a “patriotic or ceremonial character” and “has no theological or ritualistic impact.”

Language like this – which states that phrases that invoke the name of God no longer have religious meaning – should alarm religious conservatives. But it doesn’t. Religious Right groups have gone to the mat time and again to save ceremonial deism in court.

It’s often difficult these days to even secure the right to challenge ceremonial design in court. In a case challenging National Day of Prayer proclamations by Colorado governors, the Wisconsin-based Freedom From Religion Foundation found the courthouse door slammed in its face. The case, Hickenlooper v. Freedom From Religion Foundation, was tossed in January when the state’s top court said the group didn’t have the right to bring it.

“Although we do not question the sincerity of Respondents’ feelings, without more, their circuitous exposure to the honorary proclamations and concomitant belief that the proclamations expressed the Governor’s preference for religion is simply too indirect and incidental an injury to confer individual standing,” state Supreme Court Chief Justice Nancy E. Rice wrote.

That type of reasoning could make it hard to challenge even the Winfield, Ala., proclamation. Almost immediately after the city was formally handed over to God, the American Civil Liberties Union of Alabama sent a letter explaining that the city council’s action likely violated the U.S. Constitution.

“As public officials sworn to uphold and defend the United States Constitution, I am sure that you are aware that the First Amendment prohibits government from taking any action toward establishment of religion,” ACLU Alabama Legal Director Randall C. Marshall said in the letter. “The Constitution protects private assertions of faith, but absolutely prohibits govern­ment involvement in those same matters. That prohibition extends both to religion in general and to particular belief systems such as Christianity. That the resolution is generic does not matter.”

But in court, the alleged generic nature of the proclamation and the excuse that it doesn’t actually require anyone to do anything might be enough to kill a legal challenge.

Motivated by courts’ unwillingness to take ceremonial deism seriously, those who seek carve outs from the principle of church-state separation have become increasingly brazen in their efforts to classify obvious religious symbols as generic objects fit for government use.

Recently, the federal government has argued that a towering Latin cross that sits atop Mt. Soledad in California is a generic symbol of military sacrifice – even though the Latin cross is the most recognizable symbol of Christianity.

In a legal brief filed in December on behalf of military historians in the 9th U.S. Circuit Court of Appeals, Americans United said the Latin cross is a powerful symbol of the Christian religion that has rarely if ever been used by the military to mark the permanent graves of non-Christian soldiers.  (The case, Trunk v. City of San Diego, has been ongoing for more than 20 years and remains pending.)

Observers agree that confusion is likely to abound on religious issues until courts begin taking challenges to ceremonial deism seriously and stop saying that some violation of church-state separation can be excused on the grounds  of tradition.

“The justices proposed ceremonial deism but haven’t adopted a single standard,” Meyerson said. “It’s a hopeless muddle.”

Others expressed hope that ceremonial deism will one day be cast aside.

“I’m convinced that the rise of ceremonial deism won’t survive serious legal challenges,” Speckhardt said. “By arguing to preserve First Amendment separation of church and state, and also arguing for 14th Amendment equal protection rights for non-theists, the forced illogic of ceremonial deism will be undone.”