Unity of the Graveyard and the Attack on Constitutional Secularism

Brigham Young University Law Review, 2004 by Gey, Steven G

3. Lee v. Weisman, 505 U.S. 577, 646 (1992) (Scalia, J., dissenting); see also Wallace v. Jaffree, 472 U.S. 38, 106 (1985) (Rehnquist, J., dissenting) (arguing against a theory of "rigid separation" of church and state and asserting that the Establishment Clause "d[oes] not require government neutrality between religion and irreligion nor d[oes] it prohibit the Federal Government from providing nondiscriminatory aid to religion"); Marsh v. Chambers, 463 U.S. 783, 786, 792 (1983) (rejecting an Establishment Clause challenge to officially sanctioned legislative prayer, noting that such prayers are "deeply embedded in the history and tradition of this country," and concluding that they are "simply a tolerable acknowledgement of beliefs widely held among the people of this country").

4. Zorach v. Clauson, 343 U.S. 306, 313 (1952).

5. Frank Bruni, Bush Temples with McCain over Campaign Financing, N.Y. TIMES, Dec. 14, 1999, at Al (reporting that during a Republican Party primary debate the candidates were asked to name their favorite "philosopher-thinker[]," to which Bush responded, "Christ, because he changed my heart").

6. See Exec. Order No. 13,199, 66 Fed. Reg. 8499 (Jan. 29, 2001) (creating the White House Office of Faith-Based and Community Initiatives).

7. See, e.g., George Monbiot, America. Is et Religion: U.S. Leaders Now see Themselves As Priests of a Divine Mission to Rid the World of Its Demons, THE GUARDIAN (London), July 29, 2003, at 19 ("Wherever you go, you carry a message of hope-a message that is ancient and ever new. In the words of the prophet Isaiah, 'To the captives, come out, and to those in darkness, be free.'" (some internal quotation marks omitted) (quoting President George W. Bush's comment to troops)).

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9. See Newdow v. U.S. Congress, 328 F.3d 466 (9th Cir. 2002), rev'd sub nom. Elk Grove Unified Sch. Dist. v. Newdow, 124 S. Ct. 2301 (2004). Although the issue discussed in this Article is at the heart of the dispute in Newdow, all of the Supreme Court justices avoided confronting the matter in their opinions reversing the Ninth Circuit's ruling in favor of Mr. Newdow. The majority reversed the Ninth's Circuit ruling on the basis of standing, holding that although Mr. Newdow had a constitutionally sufficient injury, he failed to meet the Court's "prudential" grounds for standing. Newdow, 124 S. Ct. at 2313. Essentially, the majority deferred to the California courts' determination that the mother of Mr. Newdow's daughter had sole custody, holding that this determination gave the mother exclusive authority to decide whether a lawsuit should be brought to enforce the daughter's rights under the Establishment Clause. There is a serious question as to whether this holding accurately represents the implications of the California courts' custody rulings, and also whether this holding misrepresents Mr. Newdow's own claims. See id. at 2316 (Rehnquist, C.J., concurring) (noting that that Mr. Newdow was suing on his own-not his daughter's-behalf). Whatever the merits of the Court's reasoning, the practical effect of its standing approach to the decision allowed the Newdow majority to avoid addressing the religious-unity issue altogether.