PART IV

U. S. S. C. CASES REFERENCING CEREMONIAL
AND CEREMONIAL DEISM
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Ceremonial deism has been implicitly referred to, by the U S Supreme Court
from the very beginning of Establishment Clause jurisprudence.

"For instance, Justice Reed, dissenting from the Court's 1948 holding that
a released-time school program in Champaign, Illinois violated the
Establishment Clause, protested that congressional chaplains and prayers,
military chaplains, and assorted other long-standing governmental
interactions with religion laid the constitutional foundation for the
program at issue.44 In Zorash v. Clauson, the Court's second released-time
case, justice Douglas, writing for the majority, observed that the First
Amendment does not require complete separation between church and state,
for otherwise

[praayers in our legislative halls; the appeals to the Almighty in
the messages of the Chief Executive; the proclamations making
Thanksgiving Day a holiday, "so help me God" in our courtroom
oaths-these and all other references to the Almighty that run
through our laws, our public rituals, our ceremonies would be
flouting the First Amendment. A fastidious atheist or agnostic
could even object to the supplication with which the Court
opens each session: "God save the United States and this Hon-
orable Court."45

In short, he wrote, "[w]e are a religious people whose institutions
presuppose a Supreme Being."'
In Engel v.Vitale, the Court's first school prayer case, justice
Black distinguished the prayer declared unconstitutional therein from
permissible public practices that acknowledge a belief in God; Black wrote
that "[s]uch patriotic or ceremonial occasions bear no true resemblance to
the unquestioned religious exercise that the State of New York has
sponsored in this instance."47 In School District of Abington Township v.
Schempp, the Court's second school prayer case, justice Brennan stated in
his concurrence that governmental use of the motto "In God We Trust" does
not offend the Establishment Clause because `eve have simply interwoven the
motto so deeply into the fabric of our civil polity that its present use
may well not present that type of involvement which the First Amendment
prohibits."48 He also embraced the constitutional legitimacy of the
addition of "under God" to the Pledge of Allegiance: recitation of those
words, he suggested, "may be no more of a religious exercise than the
reading aloud of Lincoln's Gettysburg Address, which contains an allusion
to the same historical fact."49
The defining moment for ceremonial deism came in Lynch v. Donnehdy.
In his majority opinion, Chief Justice Burger justified a city's inclusion
of a nativity scene in a holiday display by referring to "an unbroken
history of official acknowledgment by all three branches of government of
the role of religion in American life from at least 1789"5o and the fact
that "[o]ur history is replete with official references to the value and
invocation of Divine guidance in deliberations and pronouncements of the
Founding Fathers and contemporary leaders."51 In no fewer than five pages
of the United States Reports, Justice Burger rattled off a comprehensive
litany of government practices embracing religion, including the
Thanksgiving and Christmas holidays, congressional and military chaplains
and the congressional prayer room, the motto, the Pledge of Allegiance, and
presidential proclamations for a National Day of Prayer, implying that all
of these practices are permissible notwithstanding the Establishment
Clause.52 Similar implicit references to the concept of ceremonial deism
have been commonplace in the Court's recent Establishment Clause
jurisprudence.53
SOURCE: Rethinking the Constitutionality of Ceremonial Deism, Steven B.
Epstein, 96 Colum L. Rev. 2095-96 (1996)

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The phrase [ceremonial deism] has explicitly appeared in only two
Supreme Court opinions, the nativity scene cases of Lynch v. Donnelly36 and
County of Allegheny v. ACLU.37

1984
LYNCH v. DONNELLY, 465 U.S. 668 (1984) (USSC+)
BRENNAN, J., Dissenting Opinion

Finally, we have noted that government cannot be completely prohibited
from recognizing in its public actions the religious beliefs and practices
of the American people as an aspect of our national history and culture.
See Engel v. Vitale, supra, at 435 , n. 21; Schempp, supra, at 300-304
(BRENNAN, J., concurring). While I remain uncertain about these questions,
I would suggest that such practices as the designation of "In God We Trust"
as our national motto, or the references to God contained in the Pledge of
Allegiance to the flag can best be understood, in Dean Rostow's apt phrase,
as a form a "CEREMONIAL DEISM," [n24] protected from Establishment Clause
scrutiny chiefly because they have lost through rote repetition any
significant religious content. See Marsh v. Chambers, 463 U.S. at 818
(BRENNAN, J., dissenting). [p*717] Moreover, these references are uniquely
suited to serve such wholly secular purposes as solemnizing public
occasions, or inspiring commitment to meet some national challenge in a
manner that simply could not be fully served in our culture if government
were limited to purely nonreligious phrases. Cf. Schempp, supra, at 265
(BRENNAN, J., concurring). The practices by which the government has long
acknowledged religion are therefore probably necessary to serve certain
secular functions, and that necessity, coupled with their long history,
gives those practices an essentially secular meaning.

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1989
ALLEGHENY COUNTY v. GREATER PITTSBURGH ACLU, 492 U.S. 573 (1989)
[Plurality decision, Blackman]
Second, the concurrence articulates a method for determining whether the
government's use of an object with religious meaning has the effect of
endorsing religion. The effect of the display depends upon the message that
the government's practice communicates: the question is "what viewers may
fairly understand to be the purpose of the display." Id., at 692. That
inquiry, of necessity, turns upon the context in which the contested object
appears: "[A] typical museum setting, though not neutralizing the religious
content of a religious painting, negates any message of endorsement of that
content." Ibid. The concurrence thus emphasizes that the constitutionality
of the creche in that case depended upon its "particular physical setting,"
ibid., and further observes: "Every government practice must be judged in
its unique circumstances to determine whether it [endorses] religion," id.,
at 694. 46 [492 U.S. 573, 596]
[SNIP]
A
In Marsh, the Court relied specifically on the fact that Congress
authorized legislative prayer at the same time that it produced the Bill of
Rights. See n. 46, supra. JUSTICE KENNEDY, however, argues that Marsh
legitimates all "practices with no greater potential for an establishment
of religion" than those "accepted traditions dating back to the Founding."
Post at 669 , 670 . Otherwise, the Justice asserts, such practices as our
national motto ("In God We Trust") and our Pledge of Allegiance (with the
phrase "under God," added in 1954, Pub.L. 396, 68 Stat. 249) are in danger
of invalidity.

Our previous opinions have considered in dicta the motto and the pledge,
characterizing them as consistent with the proposition that government may
not communicate an endorsement [p*603] of religious belief. Lynch, 465 U.S.
at 693 (O'CONNOR, J., concurring); id. at 716-717 (BRENNAN, J.,
dissenting). We need not return to the subject of "CEREMONIAL DEISM," see
n. 46 , supra, because there is an obvious distinction between creche
displays and references to God in the motto and the pledge. However history
may affect the constitutionality of nonsectarian references to religion by
the government, [n52] history cannot legitimate practices that demonstrate
the government's allegiance to a particular sect or creed.

Indeed, in Marsh itself, the Court recognized that not even the "unique
history" of legislative prayer, 463 U.S. at 791 , can justify contemporary
legislative prayers that have the effect of affiliating the government with
any one specific faith or belief. Id. at 794-795 . The legislative prayers
involved in Marsh did not violate this principle, because the particular
chaplain had "removed all references to Christ." Id. at 793 , n. 14. Thus,
Marsh plainly does not stand for the sweeping proposition JUSTICE KENNEDY
apparently would ascribe to it, namely, that all accepted practices 200
years old and their equivalents are constitutional today. Nor can Marsh,
given its facts and its reasoning, compel the conclusion that the display
of the creche involved in this lawsuit is constitutional. Although JUSTICE
KENNEDY says that he "cannot comprehend" how the creche display could be
invalid after Marsh, post at 665 , surely he is able to distinguish between
a specifically Christian symbol, like a creche, and more general religious
references, like the legislative prayers in Marsh. [p*604]

JUSTICE KENNEDY's reading of Marsh would gut the core of the Establishment
Clause as this Court understands it. The history of this Nation, it is
perhaps sad to say, contains numerous examples of official acts that
endorsed Christianity specifically. See M. Borden, Jews, Turks, and
Infidels (1984). [n53] Some of these examples date back to the Founding of
the Republic, [n54] but this heritage of official discrimination [p*605]
against non-Christians has no place in the jurisprudence of the
Establishment Clause. Whatever else the Establishment Clause may mean (and
we have held it to mean no official preference even for religion over
nonreligion, see, e.g., Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989)),
it certainly means, at the very least, that government may not demonstrate
a preference for one particular sect or creed (including a
preference for Christianity over other religions). "The clearest command of
the Establishment Clause is that one religious denomination cannot be
officially preferred over another." Larson v. Valente, 456 U.S. 228, 244
(1982). There have been breaches of this command throughout this
Nation's history, but they cannot diminish in any way the force of the
command. Cf. Laycock, supra, n. 39 , at 923. [n55]

[ Footnote 46 ] The difference in approach between the Lynch majority and
the concurrence is especially evident in each opinion's treatment of Marsh
v. Chambers, 463 U.S. 783 (1983). In that case, the Court sustained the
practice of legislative prayer based on its unique history: Congress
authorized the payment of legislative chaplains during the same week that
it reached final agreement on the language of the Bill of Rights. Id., at
788. The Lynch majority employed Marsh comparatively: to forbid the use of
the creche, "while the Congress and legislatures open sessions with prayers
[492 U.S. 573, 596] by paid chaplains, would be a stilted overreaction
contrary to our history and to our holdings." Lynch, 465 U.S., at 686 .

The concurrence, in contrast, harmonized the result in Marsh with the
endorsement principle in a rigorous way, explaining that legislative prayer
(like the invocation that commences each session of this Court) is a form
of acknowledgment of religion that "serve[s], in the only wa[y] reasonably
possible in our culture, the legitimate secular purposes of solemnizing
public occasions, expressing confidence in the future, and encouraging the
recognition of what is worthy of appreciation in society." 465 U.S., at 693
.. The function and history of this form of ceremonial deism suggest that
"those practices are not understood as conveying government approval of
particular religious beliefs." Ibid.; see also id., at 717 (BRENNAN, J.,
dissenting).
[SNIP]
JUSTICE O'CONNOR, concurring in part and concurring in the judgment.

JUSTICE KENNEDY submits that the endorsement test is inconsistent with our
precedents and traditions because, in his words, if it were "applied
without artificial exceptions for historical practice," it would invalidate
many traditional practices recognizing the role of religion in our society.
Post at 670 . This criticism shortchanges both the endorsement test itself
and my explanation of the reason why certain longstanding government
acknowledgments of religion do not, under that test, convey a message of
endorsement. Practices such as legislative prayers or opening Court
sessions with "God save the United States and this honorable Court" serve
the secular purposes of "solemnizing public occasions" and "expressing
confidence in the future," Lynch, 465 U.S. at 693 (concurring opinion).
These examples of CEREMONIAL DEISM do not survive Establishment Clause
scrutiny simply by virtue of their historical longevity alone. Historical
acceptance of a practice does not, in itself, validate that practice under
the Establishment Clause if the practice violates the values protected by
that Clause, just as historical acceptance of racial or gender based
discrimination does not immunize such practices from scrutiny under the
14th Amendment. As we recognized in Walz v. Tax Comm'n of New
York City, 397 U.S. 664 , 678 (1970),

[N]o one acquires a vested or protected right in violation of the
Constitution by long use, even when that span of time covers our entire
national existence and indeed predates it.

Under the endorsement test, the "history and ubiquity" of a practice is
relevant not because it creates an "artificial exception" from that test.
On the contrary, the "history and ubiquity" of a practice is relevant
because it provides part of the context in which a reasonable observer
evaluates whether a challenged governmental practice conveys a message of
endorsement of religion. It is the combination of the [p*631] longstanding
existence of practices such as opening legislative sessions with
legislative prayers or opening Court sessions with "God save the United
States and this honorable Court," as well as their nonsectarian nature,
that leads me to the conclusion that those particular practices, despite
their religious roots, do not convey a message of endorsement of particular
religious beliefs. See Lynch, supra, at 465 U.S. 693 (concurring opinion);
Developments in the Law 1652-1654. Similarly, the celebration of
Thanksgiving as a public holiday, despite its religious origins, is now
generally understood as a celebration of patriotic values, rather than
particular religious beliefs. The question under endorsement analysis, in
short, is whether a reasonable observer would view such longstanding
practices as a disapproval of his or her particular religious choices, in
light of the fact that they serve a secular purpose, rather than a
sectarian one, and have largely lost their religious significance over
time. See L. Tribe, American Constitutional Law 1294-1296 (2d
ed.1988). Although the endorsement test requires careful and often
difficult linedrawing and is highly context-specific, no alternative test
has been suggested that captures the essential mandate of the Establishment
Clause as well as the endorsement test does, and it warrants continued
application and refinement.

Contrary to JUSTICE KENNEDY's assertions, neither the endorsement test nor
its application in this case reflects "an unjustified hostility toward
religion." Post at 655 . See also post at 663 , 667-678 . Instead, the
endorsement standard recognizes that the religious liberty so precious to
the citizens who make up our diverse country is protected, not impeded,
when government avoids endorsing religion or favoring particular beliefs
over others. Clearly, the government can acknowledge the role of religion
in our society in numerous ways that do not amount to an endorsement. See
Lynch, supra, at 693 (concurring opinion). Moreover, the government can
accommodate religion by lifting government-imposed burdens on religion. See
Wallace v. Jaffree, 472 [p*632] U.S. at 83-84 (opinion concurring in
judgment). Indeed, the Free Exercise Clause may mandate that it do so in
particular cases. In cases involving the lifting of government burdens on
the free exercise of religion, a reasonable observer would take into
account the values underlying the Free Exercise Clause in assessing whether
the challenged practice conveyed a message of endorsement. Id. at 83 . By
"build[ing] on the concerns at the core of nonestablishment doctrine and
recogniz[ing] the role of accommodations in furthering free exercise," the
endorsement test "provides a standard capable of consistent application and
avoids the criticism leveled against the Lemon test." Rostain, Permissible
Accommodations of Religion: Reconsidering the New York Get Statute, 96 Yale
L.J. 1147, 1159-1160 (1987). The cases before the Court today, however, do
not involve lifting a governmental burden on the free exercise of religion.
By repeatedly using the terms "acknowledgment" of religion and
"accommodation" of religion interchangeably, however, post at 662-664 , 670
, 678 , JUSTICE KENNEDY obscures the fact that the displays at issue in
these cases were not placed at city hall in order to remove a
government-imposed burden on the free exercise of religion. Christians
remain free to display their creches at their homes and churches. Ante at
601 , n. 51. Allegheny County has neither placed nor removed a governmental
burden on the free exercise of religion, but rather, for the reasons stated
in Part IV of the Court's opinion, has conveyed a message of governmental
endorsement of Christian beliefs. This the Establishment Clause does not
permit.

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