Ceremonial Deism

2012-01-16 01:19:40

One of the difficult church–state issues is determining when the use of religious language by the government violates the Establishment Clause. During the past quarter century, a few Supreme Court justices have defined certain types of government religious speech as ‘‘Ceremonial Deism’’—speech that though religious in nature has a secular purpose and hence is constitutional.

The phrase originates with Eugene Rostow, then Dean of the Yale Law School, who explained in his 1962 Meiklejohn Lecture at Brown University that certain types of religious speech, which he called ‘‘Ceremonial Deism,’’ were ‘‘so conventional and uncontroversial as to be constitutional.’’ Although Rostow’s speech was unpublished, Harvard law professor Arthur Sutherland discussed Rostow’s use of Ceremonial Deism in an essay in the Indiana Law Journal in 1964, which helped to give the concept prominence among jurists and legal scholars.

Twenty years later, in 1984, Justice WilliamBrennan became the first U.S. Supreme Court justice to invoke the phrase Ceremonial Deism to explain aspects of the Court’s Establishment Clause jurisprudence. In his dissenting opinion in Lynch v. Donnelly (1984), a case in which the Court considered the constitutionality of a government-supported holiday display that contained religious symbols, Justice Brennan explained that certain types of government religious speech ‘‘serve such wholly secular purposes as solemnizing public occasions, or inspiring commitment to meet some national challenge in a manner that simply could not be fully served in our culture if government were limited to purely nonreligious phrases.’’ For Brennan, religious speech such as ‘‘the designation of ‘in God We Trust’ as our national motto, or the references to God contained in the Pledge of Allegiance to the flag can best be understood, in Dean Rostow’s apt phrase, as a form of ‘Ceremonial Deism,’ protected from Establishment Clause scrutiny chiefly because they have lost through rote repetition any significant religious content.’’ For Justice Brennan, these religious expressions have ‘‘an essentially secular meaning.’’

Five years later, in County of Allegheny v. ACLU (1989), another case dealing with the constitutionality of religious symbols in holiday displays, Justice Sandra Day O’Connor also used the phrase Ceremonial Deism to explain why certain religious speech by government actors does not violate the Establishment Clause: ‘‘Practices such as legislative prayer or opening Court sessions with ‘God save the United States and this honorable Court’ serve the secular purposes of ‘solemnizing public occasions’ and ‘expressing confidence in the future.’’’ For Justice O’Connor, it was not enough that these forms of religious speech enjoyed long historical practice. Rather, what was crucial was that this use of religious language had a secular purpose, as opposed to a purpose of promoting religion. In that same case, Justice Harry Blackmun also relied on the concept of Ceremonial Deism for his conclusion that certain forms of governmental religious speech are ‘‘not understood as conveying government approval of particular religious beliefs.’’

More recently, in Elk Grove Unified School District v. Newdow (2004), Justice O’Connor again invoked the concept of Ceremonial Deism when addressing in a concurring opinion the constitutionality of the phrase ‘‘under God’’ in the Pledge of Allegiance recited in public schools. Justice O’Connor described as Ceremonial Deism that government religious speech about which there is ‘‘a shared understanding of its legitimate nonreligious purposes.’’ For O’Connor, four factors were relevant to an assessment of whether religious speech has the requisite ‘‘nonreligious purpose’’ to render it a constitutional expression of Ceremonial Deism: (1) whether the speech has ‘‘been in place for a significant portion of the Nation’s history’’ and has been ‘‘observed by enough persons that it can fairly be called ubiquitous’’; (2) whether the speech does not constitute ‘‘worship or prayer’’; (3) whether there is an absence of reference to a particular religion; and (4) whether the speech contains ‘‘minimal reference’’ to religion at all. For Justice O’Connor, the ‘‘under God’’ language in the Pledge of Allegiance satisfied all four factors and hence was constitutional Ceremonial Deism.

No other justice joined Justice O’Connor’s opinion in the Newdow case, and no other sitting justice has authored an opinion using the phrase Ceremonial Deism, but even for those justices who do not expressly rely on the concept of Ceremonial Deism as part of their Establishment Clause jurisprudence, all of the justices agree that the question whether government speech has a religious or secular purpose is highly relevant to an assessment of the constitutionality of that speech. Many lower courts have used, and continue to use, the concept of Ceremonial Deism in determining whether government religious speech offends the Establishment Clause.


References and Further Reading

  • Epstein, Steven B., Rethinking the Constitutionality of Ceremonial Deism, Columbia Law Review 96 (1996): 2083–2174
  • Sutherland, Arthur, Book Review (Religion and American Constitutions, by Wilber G. Katz), Indiana Law Journal 40 (1964): 83–87
  • Warren, Charles Gregory, No Need to Stand on Ceremony: The Corruptive Influence of Ceremonial Deism and the Need for a Separationist Reconfiguration of the Supreme Court’s Establishment Clause Jurisprudence, Mercer Law Review 54 (2003): 1669–1718

Cases and Statutes Cited

  • County of Allegheny v. ACLU, 492 U.S. 573 (1989) 
  • Elk Grove Unified School District v. Newdow, 542 U.S. 1 (2004) 
  • Lynch v. Donnelly, 465 U.S. 668 (1984) 

See also Establishment Clause (I): History, Background, Framing; National Motto ‘‘In God We Trust’’; O’Connor, Sandra Day; Pledge of Allegiance (‘‘Under God’’)