Pledging to God While Getting a Public Education: Why a Wall of Separation Divides Ceremonial Celebration from Religious Indoctrination: Elk Grove Unified School District v. Newdow and the Right of Parental Privacy
U.S. Department of Education
December 5, 2009
Catholic Lawyer, Vol. 48, No. 2, 2009
Americans are conspicuously divided over the appropriate limits on the use of the power and influence of government in religious expression. As it stands, in dispute among many Americans, for example, is the appropriate answer to the question whether a reference to the word God in a religious text is distinctly different from a child's utterance of the word God and, if so, to what extent would the child's utterance in public school be unconstitutional? Given the significance attached to constitutional questions of liberty, freedom, and religion, it is fitting to view this public school house dispute as particularly suitable as a backdrop for launching a fundamental reassessment of the interests of children and parents that the State must respect to ensure that no aspect of compulsory public education is transformed into religious indoctrination.
This article urges that in the context of questions of liberty, freedom, and religion, the Court must assess challenges to State actions implicating religion in public education by filtering the strength of the asserted interest of the parent or child through the lens of protections of parental privacy reinforces the constitutional injunction that the State may not force an individual to profess a belief or disbelief in any religion - including a religious doctrine that receives majoritarian support by the polity. When State actions implicating religion permissibly occur inside the public school house, the integration of parental privacy protections with the limits on State power imposed by the Establishment and Religious Freedom Clauses provides the aide-memoire of the Constitution's demand that the government successfully surmount the requisite constitutional hurdles limiting State power by showing that the competing interests of children, parents, and the State can be carefully balanced in the State's favor. In this light, even school-sponsored religious exercises having arguably nominal coercive impact upon students will not pass constitutional scrutiny, if a widely-acknowledged parental right of privacy is at stake; the stronger the parental right of privacy, the less tolerant the court must be in its assessment of the degree of coercion permitted in the school-sponsored religious exercise.
Number of Pages in PDF File: 45
Keywords: First Amendment, Establishment Clause, Parental privacy, religion, liberty
JEL Classification: K10Accepted Paper Series
Date posted: October 14, 2008 ; Last revised: January 5, 2010
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