Publication Type: Conference Paper/Unpublished ManuscriptReview Method: Peer ReviewedAbstract: The recent Ninth Circuit Court of Appeals panel decision involving a challenge to the constitutionality of the phrase "under God" in the Pledge of Allegiance created apoplectic responses by virtually every politician and pundit in the country and reflected, if not the brittleness of our collective sense of self-worth and national mission, at least a concern about our moral rectitude! Thus the stage was set for the drama to be played out in the United States Supreme Court, but after accepting the case and hearing oral argument, the high Court released a non-decision, voting 5-3 to throw out the legal challenge, stating that Michael Newdow did not have proper standing. Nevertheless, three justices wrote separately to explain why they believed the phrase, "under God," did not amount to government-sponsored religion. In doing so, they ignored the traditional "Lemon" test and instead utilized history, common sense, and "ubiquity" as the central underpinnings for their conclusions.
Although the constitutional issue was not addressed by the full Court, the Newdow case served to highlight the deep divisions among its members over the meaning of the Establishment Clause and the appropriate test it should generate. This paper explores the history of Establishment Clause jurisprudence and concludes with a commentary about its current direction.
Publication Type: Conference Paper/Unpublished ManuscriptReview Method: Peer ReviewedAbstract: A review and analysis of the Supreme Court's "Lemon" test, and the later competing "coercion" and "endorsement" tests, followed by an examination of the relevant opinions in the Newdow case.