Thursday, October 31, 2013
The Pennsylvania’s House Education Committee has passed a bill (the “National Motto Display Act”) that would require all public schools to display the words “In God We Trust.” It is not yet clear when or if the measure will be put to a floor vote. Should it become law, it will inevitably lead to high-profile, divisive litigation which will require some unfortunate federal district judge to confront the Supreme Court’s confusing pronouncements about government religious speech.
“In God We Trust” began appearing on U.S. coins in 1864 (during the Civil War) and was adopted as the national motto in 1956 (during the Cold War). (In each case, one motivation may have been to proclaim that God was “on our side” of the conflict.) The still-governing principles of Establishment Law (i.e. the Lemon, endorsement, coercion tests) would suggest that these invocations of God are unconstitutional. If the government is supposed to remain neutral in matters of religion and is forbidden from “declaring religious truth” (as Prof. Andrew Koppelman would put it), “In God We Trust” looks to be clearly unconstitutional. Like “Under God” in the Pledge of Allegiance, the national motto is a statement of what defines and unites us a people – and what unites us is said to be faith in (read most broadly) the God of the Abrahamic religions (Judaism, Christianity, Islam). That is hardly neutral. Nevertheless, it is impossible to imagine that the current Supreme Court (or, for that matter, more liberal past Courts) would actually rule “under God” in the Pledge or “In God We Trust” on currency as unconstitutional. While rationales are harder to foresee, the end results are not. Consequently, we have a strong – and obvious – tension between principles and practice in the Court’s jurisprudence of government religious speech. In her role as median justice on church-state issues, Justice O’Connor sought to resolve the tensions by treating “under God” and “In God We Trust” as instances of ceremonial deism. Today, somewhere between two and five of the Justices might resolve the conflict by abandoning the principle of neutrality altogether and stating that government may embrace “monotheism,” if not Christianity. (This would be a bad idea, in my view, but that is a larger topic than a blog post permits.) Until the Court either explains or dissolves the tension between theory and practice, lower courts face a difficult job.Legislative debate about the proposed Pennsylvania law is already taking place “in the shadow of” the Establishment Clause issue with the committee vote of 14-9 split almost entirely along party lines. The bill’s sponsor, Rep. Rick Saccone (R of Allegheny County), seems well-versed in the speech codes for using God as a political wedge. He notes that next year will be the 150th anniversary of the appearance of the slogan on U.S. coins, a historical fact of particular importance to Pennsylvanians because of the part played by a former PA governor, James Pollack. (To judges who must apply a body of law shaped by Justice O’Connor: “See, this isn’t really about religion – it’s about history.”) He also asks rhetorically, “We can have witches on brooms in schools, we can have Dracula, and vampires and zombies, but we can’t have out national motto in our schools?” (To his base: “The schools can ‘endorse’ and welcome everything but the God on whom this country was founded. It’s time for God to be returned to His rightful place in our schools. And this way even those liberal judges won’t be able to stop us.”) The argument that the “National Motto Display Act” is “just history” is unconvincing here (as it usually is). But as the de facto constitutionality of the national motto in general seems clear, it would be an awkward thing indeed for a judge to declare that although we can put the national motto on coins and bills, we can’t display it in the public schools. It would be less awkward, but even more fraught, to follow the path of the original Ninth Circuit panel in Newdow by declaring the national motto unconstitutional across the board. If tasked with defending the constitutionality of the “National Motto Display Act,” I would take considerable solace in these points.
On the other hand, there is a real difference between the proposed Pennsylvania law andgovernment decisions made fifty (or 150) years ago. Furthermore, the difference tracks that between the 10 Commandments displays considered by the Court in Van Orden (40+ year-old monument outside Texas capitol upheld) and McCreary County (new display inside courthouse in a faux-historical context struck down). Whatever else those opinions may mean, they indicate a greater tolerance for “grandfathered” government religious speech than for newer speech. But why? A plausible answer (developed, among other places, in Prof. Koppelman’s recent book, Defending American Religious Neutrality) is that during the 1950’s (let alone the 1860’s), generic references to “God” could reasonably – or, at least, much more reasonably than today -- be thought of as efforts to unite rather than to divide. Our constitutional tradition does regard religion as a good thing at an abstract level (giving rise to special protections for religious liberty), but doesn’t permit government to take sides among religious claims. “God” seemed a good deal more abstract and inclusive in the past than in contemporary America. In contrast, displays like the one in McCreary County and bills like the “National Motto Display Act” are instruments of division. Putting a permanent display of the national motto in schools is not likely to make students any more religious (as proponents presumably hope), nor is it likely to put much pressure on atheists, agnostics, polytheists, or non-theists to embrace monotheism (as opponents presumably fear). The stakes for individual religious choice on the ground are rather low. Bills like this do two things: they create status-contest litigation by asking federal courts to embrace or reject the proposition that those who believe in God are more American than those who don’t, and they create political wedges. Actually, they do a third thing: they cheapen the name of God by turning it into a political tactic. None of this is good, and that the same things were going on in McCreary County is as good an explanation as any for the result in that case.
In sum, there is a real argument based on Van Orden and McCreary County that the proposed Pennsylvania law is unconstitutional even if the national motto – in general and on our currency -- is not. But it would not be an easy opinion for a lower court judge to write. Looking much further ahead, one suspects it wouldn’t be an easy opinion for Justice Kennedy to write either. Hopefully the bill dies long before either point is reached.