The Scourge of Contextualism: Ceremonial Deism and the Establisment Clause

Abstract

Over the past twenty-five years, the Supreme Court's Establishment Clause jurisprudence has been plagued by inconsistencies and hard-to-reconcile decisions. This is largely because the Court has abandoned objective analyses in favor of a more result-oriented approach, justifying certain governmentally sponsored religious practices on the grounds that, given their historical, cultural, or physical contexts, they are sufficiently diluted of religious meaning to satisfy the First Amendment. This ad hoc practice—whether guised as an application of one of the Court's formal tests or as an instance of "ceremonial deism"—has undermined the central purpose of the Establishment Clause. This Note proffers a more principled approach, based on justice O'Connor's endorsement test, which allows for some "secular" religious references but still gives fidelity to the commands of the Establishment Clause and the constitutional rights of nonadherents. Using this approach, this Note demonstrates that the current form of the Pledge of Allegiance is best understood as an unconstitutional endorsement of religion.