Print More

So on the one hand, you’ve got the Rob Schencks and Patrick Mahoneys of the world doing all they can to sacralize the government, and then you’ve got Michael Newdow, the Appignani Humanist Legal Center, et al. doing all they can to desacralize it. I’m inclined to say a pox on both your houses and let it go at that, but the more grown-up professorial thing to do is try to distinguish between what’s de minimis and what actually matters.
If someone wishes to anoint a Capitol doorpost with holy oil, it’s no skin off my nose. On the other hand, emplacing crosses or menorahs or rocks engraved with the Ten Commandments on public property or in government buildings actually does mean something like state endorsement of a particular religious tradition, and we’re entitled to be concerned about it. Going the other way, I can’t work up any principled concern about the chief justice incorporating the words “so help me God” into the presidential oath of office; it’s a phrase from common law used every day in every courtroom in the land. But, as the Supreme Court more or less acknowledged by punting on the Newdow case a few years ago, leading public schoolchildren in a Pledge of Allegiance with the phrase “One Nation Under God” in it does pose something of a problem, Establishment Clause-wise.
As a forthcoming book by UPenn’s Sarah Barringer Gordon makes clear, much of current U.S. religious jurisprudence has come about because of cranky people engaging in acts and filing lawsuits to rectify situations that most of the rest of us consider unproblematic. But there’s a price to be paid for having our civil religious space pushed and pulled by secularist and religionist zealots.