[Roguish Lawyer]

Originally posted by Airbornelawyer
BTW, Sacamuelas, what is all this "separation of church and state" talk? There is no such principle in American constitutional law.

Regarding religion, Amendment I to the U.S. Constitution says this: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;...." There are two parts to this, commonly referred to as the Establishment Clause and the Free Exercise Clause. The Establishment Clause more narrowly prevents Congress from establishing a state church, like the Church of England is. The Free Exercise Clause prohibits Congress from making laws targeting religious expression (laws of general applicability which impact religion, though, may be OK; an example would be health codes that impact Santeria rituals). The First Amendment has been incorporated through the Fourteenth Amendment and applies to states as well as the federal government .

In the Pledge case, the second question before the Court is this:

"2. Whether a public school district policy that requires teachers to lead willing students in reciting the Pledge of Allegiance, which includes the words "under God," violates the Establishment Clause of the First Amendment, as applicable through the Fourteenth Amendment."

So this is an Establishment Clause case. Does having teachers in a public school lead recitations of the Pledge "establish" religion? In the narrow sense, it does not. "Under God" is fairly generic and doesn't represent state sanction of a particular church. The question as it has developed over the past few decades though, is that while it is accepted that the state must remain neutral among different religions, not giving one official sanction over another, is it also required that the state be neutral between religion and irreligion?

Atheist advocacy groups, naturally, maintain that the latter is required, but nothing in the history of the US or the text of the Establishment Clause would seem to require it. In fact, at the time of the adoption of the Amendment, not only were many states not neutral between religion and irreligion, but they had established churches (which would no longer be permitted under the Fourteenth Amendment). And there is a litany of Supreme Court cases holding that while certain sectarian displays might offend the Establishment Clause, the extreme view that any mention of religion by government is unconstitutional is not accepted. These include matters such as the prayer at the opening of congressional and Supreme Court sessions, oaths of office that mention "so help me God" and the "In God We Trust" on currency. There is no wall between church and state in US law.

I agree. But give them a break on the "separation of church and state" thing -- that's just an imprecise description of the same thing. Plus, I believe the term is commonly used in briefings on the issue, although I'm not going to run a search to confirm.

[Edit: I now see you later hit on this point a bit with the Jefferson stuff.]