My Turn: Creative interpretations

Posted: Friday, July 18, 2003

I read with great interest the exchange between Mary Noble and Guy Crockroft regarding the 9th U.S. Circuit Court of Appeals decision in Newdow v. U.S. Congress. As a law student with a particular interest in First Amendment jurisprudence I cannot, in good conscience, allow Mr. Crockroft's creative use of Supreme Court opinions in his July 8 letter ("Religious freedom comes from Christian heritage") go unchallenged.

Mr. Crockroft is certainly right that Justice Douglas wrote for the Court that "the First Amendment does not say that in every respect there shall be separation of church and state." Zorach v. Clausen, 343 U.S. 306 at 312 (1952). What we are not told is that these words mean nothing more than that Justice Douglas felt that way. This statement is dictum; it was not necessary for the court to make this statement to resolve the issue before it and is not binding on any court.

I could just as easily quote Justice Douglas saying, "Government may not finance religious groups nor undertake religious instruction nor blend secular and sectarian education nor use secular institutions to force one or some religion on any person." Zorach, 343 U.S. at 314. Indeed, from this passage, the only logical result that can be reached is that it is unconstitutional to include the phrase "under God" in the pledge. However, the Zorach court merely held that it was not an Establishment Clause violation to allow students to be released from regularly scheduled public education to attend private education during the school day so long as there was no requirement that the private education be religious in nature.

Ignoring Mr. Crockroft's apparent misattribution of Justice Clark's opinion for the court in Abington v. Schempp, (1963), he completely ignores the context of the quoted phrase. The passage quoted was simply a preface to Justice Clark's statement that religious freedom is "strongly imbedded in our public and private life." This was followed by the court's holding that students in public schools could not be required to recite or listen to a reading of passages from the Bible or the Lord's Prayer. Justice Brennan's concurrence, which Mr. Crockroft appears to read as supporting the use of the phrase "under God" in the pledge, is some of the most forceful advocacy for an expansive reading of the Establishment Clause I have ever read.

While discussing the position of various courts on the issue of the Establishment Clause, it might be instructive to see what justices currently sitting on the court have to say. In Board of Ed. of Westside Community Schools, (1990), Justice O'Connor wrote: "there is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect." Justice Kennedy similarly wrote that "the principle that government may accommodate the free exercise of religion does not supersede the fundamental limitations imposed by the Establishment Clause. It is beyond dispute that, at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise."

It is likely that today's court would take exception to Mr. Crockroft's contention that governmental entanglement with religion is acceptable, even necessary, because anything else would "disenfranchise the majority." Justice Stevens in a recent school prayer decision, Santa Fe Independent School District v. Doe, (2000), quoted with great approval the first Supreme Court decision holding that public school students could not be required to recite the Pledge of Allegiance. Invalidating a program whereby students voted on the content of prayers to be read at school events, the court noted that "fundamental rights may not be submitted to vote; they depend on the outcome of no elections," (quoting West Virginia Bd. of Ed. v. Barnette, 1943).

Mr. Crockroft may be right that the Christian heritage of the first European-Americans contributed to the great religious freedom all Americans cherish. He would do well, however, to remember that the same heritage, one that included flight from an oppressive combination of religion and government, contributed to the great freedom from religious pressure that Americans also cherish.

• Anthony J. Mirabella of Juneau is a student at the University of Dayton School of Law.

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