Tuesday, May 25, 2004

A theme of conciliation and inclusion was apparent, for instance, in Justice Sandra Day O’Connor’s opinions almost as soon as she took her place on the Court. In Lynch v. Donnelly (1984), the first nativity scene case, O’Connor proposed that the establishment provision of the First Amendment should be construed to prohibit government from doing anything that would send a message either “endorsing” or “disapproving” religion. Although O’Connor herself seemed not to appreciate the fact, this was no modest proposal. Faithfully applied, the “no endorsement” prohibition would render unconstitutional such landmarks as the Declaration of Independence, Lincoln’s Second Inaugural Address, and, ironically, Jefferson’s famous “Virginia Statute for Religious Freedom.” It should come as no surprise, then, that the “no endorsement” doctrine was central to the Ninth Circuit’s 2002 ruling in the Newdow case that the words “under God” in the Pledge of Allegiance violate the Constitution. Such a potentially disruptive innovation cries out for justification. So it is noteworthy that O’Connor has not tried to justify the doctrine by arguing that it derives from the text of the First Amendment, or from the Framers’ intentions, or even from the American constitutional tradition.

Her principal rationale, rather, has explicitly been in terms of current needs for conciliation and inclusion: messages of endorsement or disapproval of religion are impermissible because they cause some people to feel like outsiders or “lesser members of the political community.” The “no endorsement” doctrine, which at least on its face prohibits both endorsement and disapproval, and hence purports to protect both believers and nonbelievers against offense, seeks to avoid such alienation and so to hold all citizens together in full political communion.

posted by Shaun Kenney | 5/25/2004 01:28:00 AM | 0 comments

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