The Establishment Clause and the Concept of Inclusion
46 Pages Posted: 23 Jul 2010 Last revised: 30 Jul 2010
Date Written: 2004
This essay explores the existence of a concept of inclusion in the U.S. Supreme Court’s Establishment Clause doctrine. The essay uses Newdow v. U.S. Congress, the Ninth Circuit decision declaring the words “under God” in the Pledge of Allegiance unconstitutional, as a lens through which to assess the development of the paradigm of inclusion. Part I of the essay traces the development of inclusion in the Court’s Establishment Clause cases. Part II highlights the inconsistency between inclusion and ceremonial deism, a doctrine that recognizes a category of constitutionally acceptable references to religion such as “under God” in the Pledge and “In God We Trust” on the currency. In contrasting inclusion with ceremonial deism, Part II evaluates the relative claims of religious minorities and majorities. Part III argues that the practical application of inclusion as a doctrine tends to leave behind the related concept of tolerance upon which inclusion appears to be grounded.
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