O'Connor on Religion
Bill Long 7/19/05
Reflecting on Newdow
This opinion, decided June 14, 2004 and formally known as Elk Grove Unified School District et al. v. Newdow et al., gave several Justices an opportunity to reveal their current thinking of what the Establishment of Religion means according to the 1st Amendment of the US Constitution. Though the technical issue on which the case was decided was whether Newdow had "standing" to sue on behalf of his daughter when his ex-wife had legal custody of the daughter and didn't want to sue, several Justices didn't let that narrow issue preclude their ruminations on the constitutionality of the "under God" words in the Pledge of Allegiance. Three opinions, of Justices O'Connor, Thomas and Rehnquist call for review because of their different approaches to religion. My thesis in these essays is that even though these three would have voted to uphold the constitutionality of the Pledge, their reasoning, especially that of O'Connor and Rehnquist, should be anathema to pro-religion conservatives who currently seem to be riding a wave of public popularity.
Justice O'Connor's Approach
I have provided a summary of the case elsewhere. O'Connor disagreed with Stevens (author of the opinion) regarding Newdow's standing (she felt he had standing to sue on behalf of his daughter), but she concurred in the judgment because she believed that Newdow's contention was erroneous. Her basic point is that "under God" in the Pledge of Allegiance does not violate the 1st Amendment ban on government establishment of religion because these words partake of what she calls a "ceremonial deism" that functions to solemnize the occasion rather than to establish or support a particular religion or even religion in general. As such the phrase "under God" serves "essentially secular purposes."
Thus, she allows "under God" not because it is a confession of faith in God but because it is not such a confession. It is, as we might say, a formality that we utter in order to communicate to each other the solemnity and seriousness of what is being affirmed in the other words of the Pledge. Rather than being a confession of belief in God or in the God of the Christian tradition, these words "commemorate the role of religion in our history." She has therefore saved "under God" at the expense of losing the God to whom the words point. God is only affirmed to the extent that God is not confessed as a real, living presence that might erupt into lives and transform them. But in order to understand her further, we must probe her mind deeper.
The Origins of O'Connor's Thinking
Justice O'Connor has served on the Court since being appointed by President Reagan in 1981. The Establishment framework dominant at the time was the so-called Lemon test--a three-pronged test developed in the early 1970s which said that in order to determine whether government was establishing a religion you applied three "tests"--did the practice under consideration have (1) a secular purpose? (2) a secular effect? and (3) did it excessively entangle religion and the state? All judge-made tests have an element of subjectivity to them; that is why we have judges--to develop tests in the absence of clear statutory guidance and then weigh the facts of the case in the light of the tests.
But already by 1981 dissatisfaction with the Lemon test was rising. So, in the late 1980s, in the context of a difficult case for the Court (the Allegheny case), O'Connor laid out her own approach to the issue--which she called the "Endorsement Test." What she means is that government illicitly establishes a religion if it makes a person's "beliefs relevant to his or her standing in the political community by conveying a message 'that religion or a particular religious belief is favored or preferred.'" (quoting from Allegheny). How does one determine if government is "establishing" a religion? O'Connor invents the so-called "reasonable observer" to help her out. Government is establishing a religion if the "reasonable observer" thinks that government is. A "reasonable observer" differs from one who is trying to throw in a "heckler's veto." Thus the question in O'Connor's mind, and she was a very influential Justice, is whether a reasonable observer would find the practice being challenged conveys a message that a particular religious belief is favored.
Analyzing the Issue
Does the Pledge, therefore, favor a particular religious belief? Her answer is that it does not. It does contain a "facially religious reference," but in fact such religious references can serve other than religious purposes. In a 1984 opinion (Lynch), she stated her opinion that such references may "serve..the legitimate secular purposes of solemnizing public occasions, expressing confidence in the future, and encouraging the recongition of what is worthy of appreciation in society." Because of the ubiquity and history of the Pledge (it goes back more than 100 years), the absence of any prayer-like features in the Pledge, and the absence of references to a particular religion, a "reasonable observer" would conclude that government is establishing no religion through the Pledge. The Pledge, she claims, is an example of "ceremonial deism," which contains only a "minimal" reference to religion.
Justice O'Connor, therefore, has found "under God" constitutional by denying the referent any power. Or, to put it differently, as long as God is safely ensconced in the ceremonial, as long as God is carefully relegated to history, God is not a problem. But here is where modern Evangelicals, in whose numbers I am not immembered, ought to scream. They want God in the public square precisely because God is a living force, a dynamic power, a transformative influence. Evangelicals don't say "under God" because they are solemnizing an occasion; they say it because they believe that the God of Israel, the God attested to in the Scriptures, specifically watches over and guides (and perhaps judges?) America, and that God's ways need to be brought right to the heart of the centers of government. They don't want to place God in the sterile confines of historical antiquity; they claim to want a God that acts today in strange and wonderful ways.
Justice O'Connor is definitely from a different "generation."
Copyright © 2004-2008 William R. Long