Double Dodging

The phrase “In God We Trust” was first put on U.S. coins in the 1860’s, and did not find its way to paper currency until the 1950’s.

In the first case, it was the result of one of the pendulum swings of politics and religion coming together, in this case the first attempt by religious and political leaders to marry the Republican Party (which was then still young) to revivalist Christianity of a type we would today call “evangelical,” linked with a desire to successfully win the Civil War.*

In the 1950’s, as is somewhat better-known, the expansive governmental use of “In God We Trust”, both on the currency and in its adoption as a second national motto, was a reaction to the challenge of international communism. These are inconvenient facts for those who would claim that America is a “Christian nation” (whatever that means) as they demonstrate not that the Founders wanted this overtly religious phrase to be part of our civic life, but rather demonstrates that the government is vulnerable to political pressure from religionists who nevertheless needed, on both occasions, an assist by way of an existential threat to the nation in order to weld their beliefs into law.

I have a hard time understanding how any principled examination of Congress’ adoption of “In God We Trust” as one of our two national mottos, or a Congressional act mandating the use of the phrase “In God We Trust” on government-minted currency can survive First Amendment analysis. However, it consistently does so.

In no small part, we have attorney-doctor-activist Michael Newdow to “thank” for the consistency of those findings. Most recently, Newdow filed a lawsuit against the Secretary of the Treasury and others challenging the use of that phrase on currency. He filed that challenge in 2006 and lost at the trial court, then lost again before the Ninth Circuit just under a year ago today, and the Supreme Court denied review yesterday. Two things about the case get under my skin: the reliance on ceremonial deism and the reliance on a claim of no standing. Both are unprincipled, poorly-reasoned, and evidence a lack of judicial courage.It’s not that the result is surprising. A judge would have to look down in his or her robes and find a really big set in order to issue a holding that the incredibly popular national motto is, in fact, unconstitutional. Such a ruling would produce more than the usual amount of calls for impeachment, death threats, and other nonsense that gets in the way of the orderly adjudication of pending disputes as well as the quiet, comfortable lives which judges (like the rest of us) desire to live. Nor is it that the result is fundamentally unprincipled as are all Establishment Clause decisions which, like this one, rely on the notion of “ceremonial deism.”

Ceremonial Deism

Particularly upsetting for me when I look at the jurisprudence is the adoption of this notion by Justice O’Connor, whose moderation I usually otherwise admire, in another Newdow case. But her thinking appears to be, if not overtly the law, at least the intellectual trend concerning the subject:

There are no de minimis violations of the Constitution–no constitutional harms so slight that the courts are obliged to ignore them. Given the values that the Establishment Clause was meant to serve, however, I believe that government can, in a discrete category of cases, acknowledge or refer to the divine without offending the Constitution. This category of “ceremonial deism” most clearly encompasses such things as the national motto (“In God We Trust”), religious references in traditional patriotic songs such as the Star-Spangled Banner, and the words with which the Marshal of this Court opens each of its sessions (“God save the United States and this honorable Court”). … These references are not minor trespasses upon the Establishment Clause to which I turn a blind eye. Instead, their history, character, and context prevent them from being constitutional violations at all. Elk Grove Unified School District v. Newdow (2004) 542 U.S. 1, 37 (O’Connor, J., concurring; internal citation omitted).†

Social conservatives have all sorts of elaborate legal and intellectual constructs which they offer to suggest that Congress endorsing theism over atheism is somehow not an establishment of religion. This one is a fine exemplar.

I don’t conflate the very popular and no doubt sincere and well-meaning love of an imaginary Sky Daddy with an expression of patriotism. (Nor do I imagine that all theists have such an unsophisticated belief structure, although some clearly do.) So when the Ninth Circuit not only writes, but forty years later endorses, reasoning like this, it is a bit infuriating:

It is quite obvious that the national motto and the slogan on coinage and currency ‘In God We Trust’ has nothing whatsoever to do with the establishment of religion. Its use is of a patriotic or ceremonial character and bears no true resemblance to a governmental sponsorship of a religious exercise.

* * *

It is not easy to discern any religious significance attendant the payment of a bill with coin or currency on which has been imprinted ‘In God We Trust’ or the study of a government publication or document bearing that slogan. . . . While ‘ceremonial’ and ‘patriotic’ may not be particularly apt words to describe the category of the national motto, it is excluded from First Amendment significance because the motto has no theological or ritualistic impact. As stated by the Congressional report, it has ‘spiritual and psychological value’ and ‘inspirational quality.’ Aronow v. United States (9th Cir. 1970) 432 F.2d 242, 243-44, affirmed, Newdow v. Lefevre (9th Cir. 2010) 598 F.3d 638.

The reasoning is that the national motto is “ceremonial deism” and therefore not an Establishment Clause violation at all because it is instead an expression of national identity, despite the fact that calling the national motto “ceremonial” or “patriotic” is “not particularly apt.” Despite its overt endorsement of the most fundamental tenet of theology (God exists) and its overtly ritualistic use, we are asked to believe that it is neither theological nor ritualistic. And finally, we are supposed to accept it because, gosh darn it, it makes people feel good.

It’s right there in front of your eyes, if only you will open them to see:

Congress shall make no law respecting an Establishment of religion… . First Amendment, United States Constitution.

‘In God we trust’ is the national motto. 36 U.S.C. § 302.

Unless you’re going to say that the notion of God is not somehow religious, these two sentences are incompatible. “In God we trust,” as expressed by Congress and ennobled into law, states very clearly that at minimum the lawmakers trust God and by calling it the national motto, that all Americans trust God. Of course, you have to believe in God’s existence in the first place to trust him. So that must mean that an atheist is somehow less American than those who believe in God. That’s coming right from Congress.‡

“Trust God” is exactly what ministers tell you in times of trouble. That’s religious advice — in some contexts, it’s a prayer. And it’s coming from Congress.

Very oddly, those who are the quickest to adopt and advocate the notion that when Congress refers to God thus, it really isn’t religious, are themselves deeply religious people. You don’t hear a lot of atheists saying that this statement is free from religious content. But the most vocal defenders of “In God We Trust” seem to ignore that in advocating such a position they urge the watering-down of religious thought to the point that belief in God is no longer an expression of faith. Well, actually I think they do see that but do not care, because what they are really doing is engaging (at least at that level) in sophistry: as long as the government uses the words they like, they will adopt an ostensibly watered-down version of their faith but wink at their followers because “we all know what they really meant!” So for them, it’s not really watered-down religion, it’s actual religion and they like it just fine.

So when something is called “ceremonial deism,” those of us who are not religious are supposed to agree that this is a theological statement devoid of theology, a religious expression without religious content or religious meaning, that it is a prayer that is somehow not a prayer, that it is faithless faith, an endorsement of religion that does not endorse religion. A transparent fiction like this insults the intelligence of the very intelligent people who propose it, not to mention those of us who are asked to swallow it.

Standing

So who gets to complain about this? In order to even bring a Federal lawsuit in the first place, one must be able to characterize that lawsuit as a “case or controversy” in order to meet the Article III threshold for the kinds of cases that Federal courts can hear. Federal courts cannot give advisory opinions because of the way Article III is written, and therefore a litigant must offer a claim which, if credited as true, articulates some kind of injury the litigant personally suffers and for which the courts can offer redress. This is called “standing to sue.” A searching analysis of a plaintiff’s standing can provide a convenient way for a Federal court to not decide an issue which it prefers to avoid, by claiming that the litigant has not articulated a personal injury susceptible of redress by the judicial process, and therefore claiming a lack of jurisdiction to decide the case. Michael Newdow has perhaps encountered this problem more than any other living litigant in the Federal court system, and it’s because the Court can fold the concept of ceremonial deism — an endorsement-that-isn’t-an-endorsement — into the concept of personal injury.

The adoption of the idea of ceremonial deism by the influential Justice O’Connor sent a signal to the courts throughout the land that reverberates today, and whose most recent echo was yesterday’s denial of certiorari in Newdow’s challenge to the national motto. The signal is that some kinds of bland but popular expressions of religion do not harm anyone and are therefore not violations of the Constitution. But this is inconsistent with one of her other, and significantly more intellectually sound, conceptions of the Establishment Clause:

The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person’s standing in the political community. Government can run afoul of that prohibition…[by] endorsement or disapproval of religion. Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.

The proper inquiry under the purpose prong of Lemon, I submit, is whether the government intends to convey a message of endorsement or disapproval of religion. [¶] Each government practice must be judged in its unique circumstances to determine whether it constitutes an endorsement or disapproval of religion. Lynch v. Donnelly (1984) 465 U.S. 668,688, 695.

Although still somewhat doctrinally controversial, the fact is the U.S. Supreme Court subsequently used this “endorsement test” as the basis for the finding of unconstitutionality of other governmental activities, confirming this test as law. Santa Fe Independent School District v. Doe (2000) 530 U.S. 290. I say it is controversial because Justices Scalia, Kennedy, Thomas, and Alito have all signalled, or overtly stated, that they think the endorsement test is not the right one, so it would be Chief Justice Roberts’ decision as to whether to muster a majority of votes on the Court to formally disapprove of it. (Kennedy would drop out of this majority if it came to Justice Scalia’s preference of dispensing with the more fundamental Lemon test altogether.)

It’s hard to square the idea of the endorsement test with the Ninth Circuit’s read of standing — ever the bugaboo of those who would point out violations of the law by the government. After all, the argument goes, so what if Michael Newdow doesn’t like the national motto? How does the national motto hurt him in any tangible way? It doesn’t, really; Newdow claims to have lost job opportunities as a result of his activism against government endorsement of religion, which I have no trouble believing, but his activism is different than the thing he is activist against. Thus, the Ninth Circuit offers us this as its minimal way out of Newdow’s challenge:

Although Newdow alleges the national motto turns Atheists into political outsiders and inflicts a stigmatic injury upon them, an “abstract stigmatic injury” resulting from such outsider status is insufficient to confer standing. See Allen v. Wright, 468 U.S. 737, 755-56 (1984).

Now, the Ninth Circuit agrees that Newdow has standing to challenge the use of the phrase on money, because Newdow has to handle money and therefore must personally encounter a religious endorsement, it says that Newdow lacks standing to challenge the statute enacting the national motto.

Who, then, would have such standing? Newdow is as much a citizen as I am. According to the Ninth Circuit, having my  government endorse a religious belief to which I don’t subscribe is not an injury to me. After all, the only thing really hurt by this are my feelings — this is an “abstract stigmatic injury” and therefore not an injury at all. Or so I’m told.

Would I have standing to challenge the motto if I were asked to recite it? I can say the words, just as I might say the words “Fuck the Draft” when talking about Cohen v. California and no one would think that I actually endorsed the political message simply by repeating it for discussion purposes. The national motto is something that pretty much only the government uses anyway, private citizens are free to adopt their own mottos.

So what if I were a government employee who was ordered to do something involving the motto? Or at least an employee of a contractor. Let’s say I worked as a mason for a contractor in Virginia that won the bid to engrave the words “In God We Trust” on the walls of the Capitol Visitor’s Center. If I don’t perform under the contract because I have a serious objection to the phrase, I get fired, so now the religious text of the national motto has cost me my job. Is that a tangible enough injury? Because that’s a pretty unlikely set of circumstances to imagine.

The typical method to gain standing to challenge a purported government Establishment of religion is as a taxpayer under Flast v. Cohen (1968) 392 U.S. 83. The idea in Flast is that my tax dollars are being used to support a religious idea that I do not support, and therefore I have suffered a tangible enough injury to trigger Article III standing and therefore may file a lawsuit. To get taxpayer standing under Flast, though, I must  “show that the challenged enactment exceeds specific constitutional limitations upon the exercise of the taxing and spending power and not simply that the enactment is generally beyond the powers delegated to Congress by Art. I, § 8.”  Flast, at 102-103. Which is more than a little abstract and hard to understand.

Newdow is not the only Establishment Clause plaintiff for whom standing has been a significant issue, one which has been used to get around addressing what a principled analysis ought to reveal as at least troublesome issues.  Hein v. Freedom From Religion Foundation (2007) 551 U.S. 587 is probably the most troublesome of such standing opinions from my perspective — the idea being that effectively no one has standing to challenge spending by the Executive even if the Executive spending purportedly constitutes an Establishment of religion.

A principled reading of the much-muddled law of standing suggests that no one in America has standing to come to Federal court and challenge a purported violation of the Establishment Clause. The government ostensibly lacks power to Establish a religion — but when Congress passes a law enacting a prayer as the national motto, no one can challenge that in court. Presumably, Newdow’s remedy is to persuade Congress to repeal the national motto. (And good luck with that.)

Judicial Courage

Declaring the national motto to be an Establishment of religion will of course be an unpopular thing. Just as would have been a finding that the Pledge of Allegiance violates the Constitution, or that Christmas trees and other religious displays on public property, or that a legislature opening its sessions with a prayer violates the Constitution. Yes, I know precedent has found all of these things to be perfectly okay, but then again, they are very popular. Justice Brennan got it right in his dissent in Marsh v. Chambers:  “if the Court were to judge legislative prayer through the unsentimental eye of our settled doctrine, it would have to strike it down as a clear violation of the Establishment Clause.”

The national motto is obviously very popular. If I held elective office, I would not only have to bury far from public view my analysis that the motto violates the Constitution, but I would have to love the national motto. Make a point of loving it, very publicly. If it would be possible for me to be caught making love to it, I would arrange to do so. Maybe I’d legally change my middle name to the national motto, so that on the ballot my name would show up as Burt In God We Trust Likko, making my initials BIGWTL. (You may start fashioning acronym jokes now.) I might even go so far as to have it tattooed somewhere on my body where the voters could see it whenever I gave a speech.

Which is why striking down the motto would be such a courageous thing for a court to do. The motto cannot withstand a principled analysis, just as the legislative prayer in Marsh could not, nor can the including of the phrase “under God” in the Pledge of Allegiance. These things are not included in our civic life because they lack religious significance, they are included because they possess religious significance. And that is exactly why they are Establishments of religion, and why when someone steps forward and says “Hey! That’s an Establishment, the government should knock that off!”, the courts should take such a challenge seriously.

Deciding disputes on their merits, using evidence and logic and a clear-eyed understanding of the principles of law fundamental to our nation is fundamentally the job of a court. Saying something is its opposite — saying a Latin cross lacks religious significance — is contrary to what a court should be doing. Saying that no one has the ability to challenge the government is not only contrary to the reason why courts  exist in our system, it flies in the face of our revolutionary and constitutional history, in which we had to fight a war against a King who would not listen to our petitions that the government had overstepped its powers, and in which we established a constitution specifically for the purpose of calling the government to account for its actions.

No, it’s not a surprise that the courts use dodges like these. It’s just a disappointment. We deserve better from them.

* I  haven’t looked at a lot of it, but a Google image search for images of Confederate money (a few 2-dollar, 10-dollar, and 50-dollar notes from Alabama, South Carolina, and Virginia) shows no religious text whatsoever.

† Lawyers reading this post, particularly those who have had the “pleasure” of at least one year’s service on a Law Review, may notice that I do not use Blue Book formatting for my citations. This is because I more frequently and therefore more naturally use the citation format set out in the California Style Manual favored by my state’s Supreme Court.

‡ So that means we can dispense with arguments about whether the Establishment Clause has been incorporated to the states via the Fourteenth Amendment (it has, Everson v. Board of Education (1947) 330 U.S. 1, but we don’t need to get into that right now since it’s Congress we’re talking about here).