Oh God! Can I Say that in Public?

14 Pages Posted: 9 Nov 2007

See all articles by Douglas W. Kmiec

Douglas W. Kmiec

Pepperdine University - Rick J. Caruso School of Law


This article is a foreword to the "Symposium on Religion in the Public Square." Professor Kmiec first asks how one knows the proper scope of public reliance upon God. He identifies a conflict between corporate or sovereign philosophy and individual freedom. To deny our nation's religious foundation is start us down the road of censorship; but over reliance can cause divisiveness and discord. According to Professor Kmiec, this conflict is further complicated by American confusions over the meaning of religious clauses in the Constitution. He then emphasizes the difference between the separation of church and state and freedom of religion. The concept of separation of state, while credited to Thomas Jefferson, was actually the byproduct of Protestant fears of Catholic immigrants involved in politics. It was then brought to life by Justice Hugo Black in Everson v. Board of Education of the Township of Ewing. According to Professor Kmiec, the extent of the separation of church and state is no better revealed than the Ninth Circuit's "insustainable proposition" that the Pledge of Allegiance cannot contain the words "under God." The dissent in that case correctly recognized that the words of the pledge are not prayer and, thus, not unconstitutional. The majority opinion, on the other hand, creates bias against religion and turns the First Amendment on its head. However, legislative history reveals that the addition of "under God" to the pledge was done in an effort to prevent the expansion of government and denial of civil liberties. "Anchoring basic rights upon a metaphysical source is very much part of that structural separation [between church and state], for without God, the law is invited to become God." Professor Kmiec then introduces and discusses the various contributors to the symposium.

Keywords: religion, religious exercise, separation of church and state, freedom of religion

JEL Classification: K19

Suggested Citation

Kmiec, Douglas W., Oh God! Can I Say that in Public?. Notre Dame Journal of Law, Ethics and Public Policy, Vol. 17, 2003, Available at SSRN: https://ssrn.com/abstract=1019926

Douglas W. Kmiec (Contact Author)

Pepperdine University - Rick J. Caruso School of Law ( email )

24255 Pacific Coast Highway
Malibu, CA 90263
United States

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