What the concurring Justices in Newdow said about the Establishment Clause.

As noted below, the main opinion in Newdow does not address the Establishment Clause question. The three concurring opinions do, however, and all find the Pledge, with the "under God" language, constitutional. The three concurrers are Chief Justice Rehnquist and Justices O'Connor and Thomas. (Justice Scalia did not participate.) All three write up their own views of the Establishment Clause, and O'Connor also joins the Chief's opinion with respect to the Establishment Clause.

The Chief's opinion largely deals with the standing issue (which I'll discuss in a separate post), and his Establishment Clause material is largely the familiar litany of references to God in various speeches ("With malice toward none, with charity for all, with firmness in the right as God gives us to see the right...") and songs ("Then conquer we must, when our cause it is just/And this be our motto: 'In God is our trust.'"). Then the question is whether to think about the problem in terms of "coercing" participation in a religious exercise or "endorsing" religion. The Chief and Justice Thomas only consider whether there is a coercion problem, while Justice O'Connor also considers whether there is endorsement.

Justice O'Connor however finds no endorsement of religion: since the Pledge is not a prayer or an act of worship, since it does not single out a particular religion, and since it is such a long and widely practiced exercise, a reasonable person—in her view—would not conclude that government is endorsing religion.

All three concurrers apply the "coercion" standard. The Chief Justice and Justice O'Connor simply do not see a "religious exercise," so it does not matter to them that having to stand by during the exercise was called coercion in Lee v. Weisman, where students attending a graduation ceremony were seen as "coerced" merely by having to listen to a prayer. O'Connor explained that the mild coercion of being an onlooker doesn't violate the Establishment Clause when the exercise was merely one of "ceremonial deism," which is "simply not religious." Justice Thomas (like the 9th Circuit) thought that the standard articulated in Lee would make "under God" in the Pledge unconstitutional, but he would overrule Lee, so his conclusion was still that the Pledge did not violate the Establishment Clause.

Thomas's opinion is also notable in that it rejects the application of the Establishment Clause to the states at all. In his view, unlike the Free Exercise of Religion clause, and many of the other rights in the original Bill of Rights, the Establishment Clause should not be seen as incorporated into the Fourteenth Amendment: "the Establishment Clause is best understood as a federalism provision," barring the creation of a national church and barring federal interference with any establishments of religion the states may want to make. "As strange as it sounds, an incorporated Establishment Clause prohibits exactly what the Establishment Clause protected–state practices that pertain to 'an establishment of religion.'" He invites the rest of the Court to reexamine the incorporation issue. It's virtually impossible to imagine the Court going back to the question of Establishment Clause incorporation, though there were strong arguments to this effect that the Court ought to have addressed back when it initially found incorporation.

O'Connor's opinion is also interesting for its rejection of the "de minimis" argument: "There are no de minimis violations of the Constitution--no constitutional harms so slight that the courts are obliged to ignore them." As indicated above, she also accepts the term "ceremonial deism" (which "encompasses such things as the national motto ('In God We Trust'), religious references in traditional patriotic songs such as the Star-Spangled Banner, and the words with which the Marshal of this Court opens each of its sessions ('God save the United States and this honorable Court')"). It is important to distinguish the de minimis argument from the acceptance of ceremonial deism: the point is not that there are some constitutional violations that are too small to be worth the fuss of correcting, it is that some kinds of general, solemnizing references to the divine are simply not violations at all.