William Rehnquist and chief justice william rehnquist and rehnquist on religion and newdow

A complete review of Chief Justice William Rehnquist's approach to religion would take many essays. He has served on the Court for more than 30 years; indeed he is now one of the five longest-serving Justices in the history of the Supreme Court. After taking a seat on the Court early in 1972, he carved out a reputation as a lightning-quick thinker and skillful writer, a person who deeply respected the Court's traditions but vigorously opposed the jurisprudence of the Warren Court. His tenure as Chief Justice (1986-present) has probably made him the second most influential Chief Justice in American history (behind Marshall). Any detailed consideration of his approach to Establishment Clause issues must begin with a treatment of his dissent in the 1985 Wallace case. The purpose of this essay is more limited: to limn his current approach to the Establishment Clause through a brief consideration of his concurrence in Newdow.

Getting our Bearings--Starting with a Personal Story

One of the observations I made early in my Evangelical days (1968-1977) was that the "older generation" (i.e., what we would call the World War II generation, born between 1910 and 1930) looked at religion far differently than the "modern" Evangelicals. This was never so clear to me as when President Gerald Ford came to speak at my seminary graduation (1977). He was invited and came because one of his sons was also in the graduating class. The air at the South Hamilton campus of Gordon-Conwell Theological Seminary was almost electric. Ford had just been defeated by Jimmy Carter a few months previously, but anytime you had a sitting or a recently defeated President of the country walking in your midst, you tend to pay attention, even if it is only to see if he will fall down the stairs.

I don't remember much of what President Ford said; I do recall he made some general and vague observations about how "God had helped him" in the White House. I restrained myself from making obvious comments to my neighbors, but I recall that he spoke of God more as a kind of gentle influence or even a sort of distant presence rather than what my seminary had told me to believe about God. Indeed, the 1976 election saw Presidential candidates speaking for the first time of their "personal experience" with religion; such a phrase would have been thought inappropriate and not-a-little seamy earlier. Just as journalists didn't probe into politicians sex lives in the 1950s and 1960s, so they didn't want to know about such a person's "personal experience" with God. Nevertheless, we did, and Gerald Ford really didn't "deliver."

Returning to Rehnquist--Slowly

I think this Gerald Ford story is helpful for getting a perspective on a generation's view of God, a generation that is now rapidly passing from the scene, a generation of which William Rehnquist (b. 1924) is a good example. For the leaders of the WWII generation, religion was something that was highly regarded and expected of a public figure, but something that could comfortably be relegated to the "religion page" of the Saturday paper and the Church service on Sunday morning. This doesn't mean that people's religion was unimportant to them or that they didn't feel that God was actively concerned with them (indeed, more than one man would talk about the sense of divine presence with them in the foxholes of Europe during WWII), but religion was seen as a "private matter," something akin to the way you talked intimately to your wife. Everyone did it, but no one really wanted to be privy to these conversations.

Religion was also generally believed to be a foundation for a moral, economic and political system. And, it was the means by which we could contrast ourselves with the Communists. They were "godless," we believed in God. They, therefore, had a moral system that degraded people; we honored the sacredness of human life. God was the anchor of national life to the extent that it differentiated us from a system that we believed was cruel, economically backward, not respecting of human dignity, and atheistic to boot. If you questioned the existence of God or the importance of God for the nation's history, it might be taken by some as akin to questioning the foundations of American life and the values of this great country. There were "famous" atheists, to be sure, but they were portrayed as crackpots or kooks, so out of step with the mainstream of American life that they could be safely ignored.

Thus, when you asked this WWII generation questions about religion, their responses would almost be inseparable from patriotism or from a view of how religion related to their role as loyal citizens. Religion buttressed the status quo; it was seen as a "glue" holding us together. We were, in the words of the title of a best-selling 1955 book, Protestant, Catholic and Jew but we were, fundamentally, Americans who believed in God.

Finally, Rehnquist

Understanding this history makes William Rehnquist's opinion in Newdow perfectly explicable. Rather than seeing the Pledge as a religious affirmation, he sees it as a patriotic statement. In his first sentence after introducing the phrase "under God," he turns directly to patriotism: "Examples of patriotic invocations of God and official acknowledgments of religion's role in our Nation's history abound." He then lists several examples where important figures in American history mentioned God in their official capacity. That is enough for Rehnquist. Recitation of a belief in God's existence and God's providential care for America was tantamount to saying that "our national culture allows public recognition of our Nation's religious history and character." Our country was founded on a belief in God. But, "reciting the Pledge, or listening to others recite it, is a patriotic exercise, not a religious one..." Recitation of the Pledge "cannot possibly lead to the establishment of a religion, or anything like it."

Conclusion

I think that many in the 2005 generation would see things quite differently from Rehnquist and O'Connor, even if coming up with similar conclusions. For religious conservatives today, God is a living presence, a transformer of lives (the President uses this kind of language frequently, mostly in terms of Iraq's "transformation," however), a Person who cannot be excluded form public life. They would want the Pledge because it affirms a religious truth, and not because it either is not religious (Rehnquist) or it points to a punchless ceremonial deity (O'Connor). However, there are countervailing arguments, to which I will turn after a brief essay on Justice Thomas.

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