Some, who rather choke on the notion of de minimis, have resorted to the euphemism “ceremonial deism.” See, e.g., Lynch, 465 U.S. at 716, 104 S. Ct. at 1382 (Brennan, J., dissenting). But whatever it is called (I care not), it comes to this: such phrases as “In God We Trust,” or “under God” have no tendency to establish a religion in this country or to suppress anyone’s exercise, or non-exercise, of religion, except in the fevered eye of persons who most fervently would like to drive all tincture of religion out of the public life of our polity. Those expressions have not caused any real harm of that sort over the years since 1791, and are not likely to do so in the future. As I see it, that is not because they are drained of meaning. Rather, as I have already indicated, it is because their tendency to establish religion (or affect its exercise) is exiguous.
I recognize that some people may not feel good about hearing the phrases recited in their presence, but, then, others might not feel good if they are omitted. At any rate, the Constitution is a practical and balanced charter for the just governance of a free people in a vast territory. Thus, although we do feel good when we contemplate the effects of its inspiring phrasing and majestic promises, it is not primarily a feel-good prescription. In West Virginia Board of Education v. Barnette, 319 U.S. 624, 630, 642, 63 S. Ct. 1178, 1181, 1187, 87 L. Ed. 1628 (1943), for example, the Supreme Court did not say that the Pledge could not be recited in the presence of Jehovah’s Witness children; it merely said that they did not have to recite it. That fully protected their constitutional rights by precluding the government from trenching upon “the sphere of intellect and spirit.” Id. at 642, 63 S. Ct. at 1187. As the Court pointed out, their religiously based refusal “to participate in the ceremony [would] not interfere with or deny rights of others to do so.” Id. at 630, 63 S. Ct. at 1181. We should not permit Newdow’s feel-good concept to change that balance.
My reading of the stelliscript suggests that upon Newdow’s theory of our Constitution, accepted by my colleagues today, we will soon find ourselves prohibited from using our album of patriotic songs in many public settings. “God Bless America” and “America The Beautiful” will be gone for sure, and while use of the first and second stanzas of the Star Spangled Banner will still be permissible, we will be precluded from straying into the third. And currency beware! Judges can accept those results if they limit themselves to elements and tests, while failing to look at the good sense and principles that animated those tests in the first place. But they do so at the price of removing a vestige of the awe we all must feel at the immenseness of the universe and our own small place within it, as well as the wonder we must feel at the good fortune of our country. That will cool the febrile nerves of a few at the cost of removing the healthy glow conferred upon many citizens when the forbidden verses, or phrases, are uttered, read, or seen.
In short, I cannot accept the eliding of the simple phrase “under God” from our Pledge of Allegiance, when it is obvious that its tendency to establish religion in this country or to interfere with the free exercise (or non-exercise) of religion is de minimis.
Thus, I respectfully concur in part and dissent in part.
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