concurring.
I concur with the court’s fine opinion and conclusion that reciting the Pledge of Allegiance does not offend the establishment clause. I write separately to emphasize that we need not totally denude the Pledge by reducing its language to the lowest common denominator of “ceremonial deism” as favored by Justice Brennan. A civic reference to God does not become permissible under the First Amendment only when it has been repeated so often that it is sapped of religious significance. Such an approach implies that phrases like “in God we trust” or “under God”, when initially used on American coinage or in the Pledge of Allegiance, violated the establishment clause because they had not yet been rendered meaningless by repetitive use. As this court shows, the Founders demonstrate by their behavior that the First Amendment was not intended to prohibit states from sanctioning ceremonial invocations of God. Such state action simply does not amount to an establishment of religion.
Another problem with the concept of “ceremonial deism” is that it selects only religious phrases as losing their significance through rote repetition. Why only “under God”? Why not “indivisible”, “liberty and justice for all”? Do not these equally repeated phrases also lose their meaning under the logic of “ceremonial deism”? The answer, quite simply, is that a court cannot deem any words to lose their meaning over the passage of time. Each term used in public ceremony has the meaning intended by the term.
There is a significant difference in a result which strikes down the Pledge as an endorsement of religion, and one which leaves the Pledge intact, accompanied by the official pronouncement that it is meaningless. While under the first alternative the Pledge is prohibited from civic functions, under the second alternative the Pledge is allowed, and people are free to ignore the pronouncement of this court, and recite the Pledge with any degree of meaning they desire.
There is no need, however, to apply either alternative. The Pledge of Allegiance with all of its intended meaning does not effectuate an establishment of religion. If legislative prayer based upon the Judeo-Christian tradition is permissible under Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983), and a Christmas nativity scene erected by a city government is permissible under Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984), then certainly the less specific reference to God in the Pledge of Allegiance cannot amount to an establishment of religion. We need not drain the meaning from the reference to reach this conclusion.