Of Christmas Trees and Corpus Christi: Ceremonial Deism and Change in Meaning over Time
Hill, B. Jessie, Duke Law Journal
Although the Supreme Court turned away an Establishment Clause challenge to the words "under God" in the Pledge of Allegiance in Elk Grove Unified School District v. Newdow, the issues raised by that case will not go away anytime soon. Legal controversies over facially religious government speech have become one of the most regular and prominent features of Establishment Clause jurisprudence--and indeed, a second-round challenge to the Pledge of Allegiance is currently percolating, which will likely result in resolution by the Supreme Court. That resolution will depend on an understanding of the social meaning of the practice at issue.
This Article addresses the constitutional analysis of "ceremonial deism"--brief official religious references such as the words "under God" in the Pledge of Allegiance, the national motto "In God We Trust," and the city names Corpus Christi and St. Louis. Courts have generally stated in holdings and dicta that ceremonial deism is constitutional because these phrases have lost their religious meaning through the passage of time or rote repetition. To examine this claim--the "secularization" thesis--this Article draws on one particular branch of linguistic theory, known as speech act theory, as it applies to the problem of change in meaning over time. Because speech act theory is particularly useful for the analysis of social meaning, this Article contends that some insights about the problem of ceremonial deism may be found there, lending depth to an argument that has gone almost entirely untheorized by those who have espoused it. Finally, this Article considers the implications of this analysis for the constitutionality of these official religious references. Ultimately, while recognizing that meaning can change over time in some instances, this Article concludes that courts should be skeptical of this claim and should instead adopt a rebuttable presumption of enduring religious meaning when confronted with constitutional challenges to instances of ceremonial deism.
TABLE OF CONTENTS Introduction I. Ceremonial Deism and the Secularization Thesis A. The Secularization Thesis B. Criticisms of the Secularization Thesis C. Ceremonial Deism in the Context of Establishment Clause Doctrine II. Speech Act Theory, Iterability, and Change in Meaning over Time A. Meaning and Illocutionary Force B. Conventionality 1. The Conventionality of Speech Acts 2. Iterability, Speaker's Intent, and the Vulnerability of Language 3. The Persistence of Meaning 4. How Speech Acts Succeed Despite Their Vulnerability C. Uptake III. Ceremonial Deism, Speech Act Theory, and Establishment Clause Doctrine A. Speech Act Theory and Establishment Clause Doctrine B. Doctrinal Implications 1. A Rebuttable Presumption 2. Rebutting the Presumption C. Examples 1. Place Names 2. The Pledge and the Motto 3. Anno Domini Conclusion
The past is never dead. It's not even past.
--William Faulkner, REQUIEM FOR A NUN (1)
QUESTION:.... [I]s it the Government's position that the words, under God, have the same meaning today as when they were first inserted in the pledge?
MR. OLSON: Yes and no....
QUESTION: Because it's a terribly important question.
Oral argument, Elk Grove Unified School District v. Newdow (2)
The history of America's national motto is in part a history of wars, both real and cultural. "In God We Trust" first came to be imprinted on coins in response to pleas like that from Reverend M.R. Watkinson to the Secretary of the Treasury, Salmon P. Chase. (3) Writing in 1861, in the midst of the Civil War, Reverend Watkinson exhorted: "What if our Republic were now shattered beyond reconstruction. Would not the antiquaries of succeeding centuries rightly reason from our past that we were a heathen nation. …