Here's a little caselaw for you interested fellows. As an attorney, I honestly have NO IDEA how the Supremes will go with this one if they grant cert on it.
Here's why:
In 1983, in Marsh v. Chambers, the Court upheld a tradition of the Nebraska Legislature to open every session of that body with prayer even though it was the same denomination every year for 16 years and his salary was paid for by the State. There, the court stated:
"In light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of opening legislative sessions with prayer has become part of the fabric of our society. To invoke Divine guidance on a public body entrusted with making the laws is not, in these circumstances, an "establishment" of religion or a step toward establishment; it is simply a tolerable acknowledgment of beliefs widely held among the people of this country. As Justice Douglas observed, "[w]e are a religious people whose institutions presuppose a Supreme Being." Zorach v. Clauson, 343 U.S. 306, 313, 72 S.Ct. 679, 683, 96 L.Ed. 954 (1952)."
Now, as per CJ Burger's usual, there's precious little analysis in there, especially with respect to what constitutes "acknowledgment" vs. "establishment." It's ipse dixit and sophistry (whether or not its right from a legal standpoint). I have not read Zorach v. Clauson, so I don't know if that quote is taken out of context or not.
BUT, this is not a case that seems to have a lot of legs, to wit:
"Our previous opinions have considered in dicta the motto and the pledge, characterizing them as consistent with the proposition that government may not communicate an endorsement *603 of religious belief. Lynch, 465 U.S., at 693, 104 S.Ct., at 1369 (O'CONNOR, J., concurring); id., at 716-717, 104 S.Ct., at 1382 (BRENNAN, J., dissenting). We need not return to the subject of "ceremonial deism," see n. 46, supra, because there is an obvious distinction between creche displays and references to God in the motto and the pledge. However history may affect the constitutionality of nonsectarian references to religion by the government, [FN52] history cannot legitimate practices that demonstrate the government's allegiance to a particular sect or creed.
FN52. It is worth noting that just because Marsh sustained the
validity of legislative prayer, it does not necessarily follow that practices like proclaiming a National Day of Prayer are constitutional. See post, at 3143. Legislative prayer does not urge citizens to engage in religious practices, and on that basis could well be distinguishable from an exhortation from government to the people that they engage in religious conduct. But, as this practice is not before us, we express no judgment about its constitutionality."
This comes from a case called County of Allegheny v. ACLU
Whether the Court will consider Congress' joint resolution establishing the text of the pledge a historical practice constituting "ceremonial deism" rather than an exhortation to observe some type of belief system based on the divine is far from clear, as you can see. Its interesting to see how the Court distinguishes the motto and PoA in the text and then seems to abolish it in a footnote. Classic.
Just food for thought
Thoth
You can fly?!?
No. Jump good.
You can fly?!?
No. Jump good.
