Academic journal article Brigham Young University Law Review


Academic journal article Brigham Young University Law Review


Article excerpt

It is my pleasure to welcome you to the American Association of Law Schools' 2004 Law and Religion section Meeting and to thank our distinguished panel for being with us to address the topic, "One Nation Under God? Unity, Diversity, and Neutrality Under the Religion Clauses." We meet in interesting times, when questions about the proper place of religion in public life and public support for religious life are matters of deep and spirited national concern. The questions we address today are not esoteric matters of interest only to specialists, although our panelists bring a depth, care, and subtlety of thinking to these issues that is often lacking from the heated political and journalistic discourse that has been notable mostly for its volume, in the many senses ofthat word.

When the Ninth Circuit held in Newdow v. United States Congress1 that California's policy of requiring the recitation of the Pledge of Allegiance in public school classrooms was an unconstitutional establishment of religion due to the Pledge's inclusion of the words "under God,"2 the political reaction was swift and negative. Lawmakers on both sides of the aisle condemned the ruling as "ridiculous," "nuts," and "stupid,"3 and, in response, both houses of Congress passed resolutions by overwhelming margins in support of the Pledge.4 Upon reflection, however, many commentators weighed in with the view that the Ninth Circuit's analysis represented a faithful application of what can only be described as the Supreme Court's confusing and chaotic doctrine governing this area of the law.5 When the case went before the Supreme Court, dozens of amici lined up on each side of the issue.6 (Since the section meeting in January 2004, the Supreme Court held that Michael Newdow, as a noncustodial parent, did not have standing in the case.7 The immediate effect of this holding was a reversal of the Ninth Circuit, but the outcome was widely viewed as a postponement of the Pledge issue.)8

While the Pledge case set off political shock waves, it was not the only recent case involving religion in public life to touch raw nerves. In the twelve months since last we met, the case reporters and headlines have been filled with controversies involving the Free Exercise Clause and the Establishment Clause. Even a brief and partial recitation of the issues and cases during the year 2003 makes clear that a deep and wide division exists in our country on matters involving public support of religion, the proper relationship of church and state, and the acceptable limits of religious expression in the public square.

For example:

* In Alabama, attorneys sued Chief Justice Roy Moore of the Alabama Supreme Court, alleging that he violated the Establishment Clause by placing a large stone monument engraved with the Ten Commandments in the Alabama State Judicial Building. The Eleventh Circuit Court of Appeals upheld a federal district court judge's conclusion that the display violated the Establishment Clause.9 A showdown over the rule of law ensued when Chief Justice Moore refused to remove the display, and an Alabama judicial ethics panel eventually removed him from office.10 Demonstrators, including one dressed as Moses carrying cardboard tablets, protested outside the state court building in support of Moore,11 but the United States Supreme Court denied certiorari in the case.12

* In contrast, a Kentucky federal district court, the Fifth Circuit in a Texas case, and the Third Circuit in a Pennsylvania case each held that the display of the Ten Commandments in public buildings does not violate the Establishment Clause.13

* Other federal courts did find Establishment Clause violations in cases involving displays of the Ten Commandments in public places. In a case from Wisconsin,14 the city of La Crosse sold a small parcel of land containing a display of the Ten Commandments to a fraternal organization, built a fence around the monument, and posted a sign disclaiming endorsement of a religious message. …

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