• 25 January 2010

Of Christmas Trees and Corpus Christi: Ceremonial Deism and Change in Meaning Over Time

& B. Jessie Hill

Posted in , , , ,

Lately, it seems that the Supreme Court has taken a strong interest in the question whether, and under what circumstances, religious speech and symbolism are constitutionally permissible in government-sponsored settings. Last Term, in Pleasant Grove City v. Summum,1 the Supreme Court considered whether a city had to allow the Summum religious group to erect its own religious monument in a park containing a Ten Commandments monument, among other objects. Just a few Terms earlier, the Supreme Court attempted to clarify when the Ten Commandments themselves are permitted on public property. And in the 2009–2010 Term, the Supreme Court is set to determine whether a Latin cross in the middle of the Mojave Desert National Preserve on a particular patch of land that had been transferred to a private party violates the Establishment Clause of the Constitution. 2

Yet, the Court has consistently dodged the question of whether one type of religious government speech is constitutional—namely, speech that is often called “ceremonial deism.” That term is commonly used to refer to brief or passing religious references, such as the national motto (“In God We Trust”), the words “under God” in the Pledge of Allegiance, the city names Corpus Christi and St. Louis, and the abbreviation “A.D.” (Latin for “In the year of the Lord”). In 2004, the Court dismissed a constitutional challenge to the recitation of the Pledge of Allegiance in public schools without reaching the merits. The Supreme Court has not decided any other direct challenges to the constitutionality of these brief religious references; instead, various Justices have voiced their views on the matter in dicta, usually suggesting that these references pass constitutional muster because they have lost their religious meaning over time. And while lower courts have faced more direct challenges to ceremonial deism, they have largely espoused the same “secularization” thesis with very little supporting analysis.

It is surprising that little consideration has been brought to bear on the validity of the secularization thesis. Indeed, courts have focused minimal attention on the problem of discerning the meaning and effect of these phrases. Linguistic theory, however, may provide some answers to the thorny constitutional questions that ceremonial deism presents, or at least suggest directions for more nuanced analysis.

 
I.
Speech Act Theory

Speech act theory is a branch of philosophy of language that considers how language actually works—and how and why it fails. Rather than considering language as abstract means of conveying truth, speech act theory looks at language as it is used in everyday life, perceiving language primarily as doing—as bringing about states of affairs, with greater or lesser degrees of success. It is easy to come up with legal examples of language bringing about concrete effects: imposing a prison sentence, enjoining a party from taking an action, and forming a legally binding contract are obvious instances of speech acts—that is, of actions that are performed by and through language.

Less obviously, even describing a state of affairs involves doing something with words, just as much as sentencing and enjoining and contracting do. A descriptive utterance accomplishes something specific and distinct through the use of words. And it may often also be an “act” in the sense that it does more than passively observe or describe: it may also help to construct the reality to which it merely refers or purports to refer. Descriptions and statements may tend to reinforce particular truths or realities by presenting them as fact rather than as one contested viewpoint among many.

Speech act theory refers to the act performed by and in speaking (describing, sentencing, enjoining, and so on) as illocutionary force. Every meaningful utterance possesses some illocutionary force.

 
A.     Conventionality and Iterability

To be effective as a speech act, any meaningful statement must be uttered under the appropriate conditions. For example, the speech act of bequeathing possessions to an heir cannot be performed successfully unless certain conventions are met. Those conventions include the numerous formalities pertaining to wills under state law, such as signature and witness requirements; the requirement that the bequeathing person has the legal authority to dispose of that property; and the requirement that the individual not be incompetent, under duress, performing in a play, or giving an example of performative utterances in a law review article when the words are uttered. The words themselves are also part of the conventionality of the speech act: although many different combinations of words may be used to bequeath one’s possessions, those words must still be recognizable to the relevant readers as words of bequest.

Moreover, if language is conventional, it must function according to a set of learnable, and thus reproducible, rules. The functionality of language depends, in other words, on its ability to be repeated—on the ability of certain speech acts to be replicated in a variety of contexts. But this ability to be repeated, or iterability, also means that any linguistic utterance is capable of being cut off from both its original context and its speaker’s intent to be reproduced in a context that may change or undermine its prior meaning or in ways that may not have been originally intended.

Many examples of ceremonial deism—city names, the national motto, the language of the Pledge, and even Christmas trees—function by means of this iterability; indeed, they must function in the absence of any particular speaker or any particular intended hearer. The national motto on coins, for example, is recognizable as such because of the repetition of its exact phrasing and its placement on the coins. But at the same time, its repeatability, and thus its recognizability, is exactly what opens it up to new, and possibly ironic, use in other contexts—such as the joke “In God we trust; all others pay cash.” The joke draws its humor from the way it trivializes the religious component of the motto, as well as the way in which it associates God and Mammon—an association that is latent but unexplored in the motto’s use on currency itself. In fact, the joke is comprehensible only in terms of its religious origins.

Yet the possibility of changed meaning need not be relevant only when a phrase or term is used facetiously. Placing religious-themed artwork in the context of a public museum, for example, will usually remove the religious significance from the government’s decision to embrace that religious speech. Even if the artwork itself has deep religious meaning, its placement in the National Gallery would not suggest the illocutionary act of government endorsement of religion, but rather of depiction of religious events, or simply of visually “quoting” the artist’s religiously motivated expression.

 
B.     Meaning’s Vulnerability—and Its Persistence

Despite this vulnerability to change, illocutionary force possesses a surprising persistence. Each time a term is used, it invokes its past usages and thus reconsolidates them, reminding the reader or listener of its historical meanings. The joke “In God we trust; all others pay cash” makes sense only because it reminds the listener of the religious origins of the phrase, though its bent is decidedly secular. But more serious uses of the national motto also draw and rely upon its original religious meaning. The phrase “In God We Trust” was initially imprinted on coins as a way of signifying the nation’s religious and patriotic commitment in the Civil War era; its adoption as the U.S. national motto during the Cold War was infused with a similar sentiment. Coexisting with those sentiments, moreover, was a spirit of exclusion—a desire to distinguish the United States from other so-called heathen or godless atheistic nations, which consequently labeled nonbelievers as unpatriotic. When the motto is used in a solemnizing way or as an expression of national unity, it is capable of performing those solemnizing and unifying functions precisely because of its invocation and repetition of the set of religious beliefs and practices that originally motivated its creation and its adoption as the motto. Its usage relies on the unique power conferred by the religious force of the motto’s prior usages to accomplish the act of solemnizing or unifying. Nonetheless, the motto’s defenders, like the courts that have considered its constitutionality, often deny both the phrase’s original religiosity and the spirit of exclusion that motivated the motto’s adoption, thereby allowing the motto to give the illusion of voicing a universal and purely patriotic belief that can claim the support of virtually all citizens.

Meaning is thus at once both vulnerable and surprisingly persistent. Moreover, speech acts often appear to deny or conceal their original context despite the fact that the original context continues to give the speech act its force. Further, the original context that must be concealed is often one of political or social subordination or strife. Ignoring this strife allows the speech act to appear to possess a singular, unifying, and uncontroversial meaning. But in reality, the past meaning persists, if only as the original context that gives the speech act its force and authority. Past social context therefore plays a role in interpreting these speech acts.

 
II.
The Implications of Speech Act Theory for the Constitutionality of Ceremonial Deism

 
A.     A Rebuttable Presumption

It would be foolish to contend that the complex body of theory I have just described can yield easy answers to constitutional challenges. Nonetheless, I believe some directions for analysis can be identified. Specifically, courts should adopt a rebuttable presumption of continuing religious meaning when confronted with an Establishment Clause challenge to ceremonial deism. Of course, speech act theory’s emphasis on illocutionary force suggests that the presence of facially religious language should not automatically mean that the language’s effect is religious. At the same time, speech act theory teaches that meaning, although vulnerable to change, has a tenaciousness that is often underappreciated. A rebuttable presumption of religious meaning is therefore appropriate as an acknowledgement of this tenaciousness.

Moreover, a rebuttable presumption is appropriate because speech act theory teaches that the speech acts of “describing” and “acknowledging” may be far less neutral and passive than they appear. The act of describing a reality may instead have a tendency to create and enforce that reality; moreover, this danger seems particularly acute when the describing is done in the name of the state. This effect may be intensified rather than lessened by the repetition of certain phrases throughout history, as that repetition, too, may be an attempt to shore up the reality that the phrase appears merely to describe.

Finally, the capacity of meaning to persist over time also suggests the importance of history and social context in determining whether a speech act retains its religious force. As described above, speech acts have a tendency to conceal the sort of history of subordination or divisiveness that lies behind them. Accordingly, courts should be particularly sensitive to clues regarding an utterance’s history.

The rebuttable presumption I envision would function primarily as a burden-shifting technique. A plaintiff challenging an instance of ceremonial deism would have to show only facially religious language to get the benefit of a rebuttable presumption of continuing religious meaning. At that point, the burden would shift to the government to prove that the religious meaning has been lost. The government could do so in one of two ways. It could either demonstrate the absence of religious illocutionary force, as in the case of place names or other genuinely referential or citational phrases, or it could show that the sociohistorical context contains no divisive or religiously oppressive past that continues to inform present usage. If the government’s showing is unconvincing or if the plaintiff is able to undermine the government’s claims, the utterance should be considered a religious one.

 
B.     Examples


1.   Place Names

Challenges to the constitutionality of city names like Corpus Christi and St. Louis are the cases in which the presumption would most likely be rebutted. Although these names have facially religious—even sectarian—content, they do not generally carry an illocutionary force that can be described as religious when they are used as proper names to refer to long-established cities. Indeed, the city names of San Francisco and Los Angeles may carry with them many connotations, but religiosity, sainthood, and angels are not among the most immediate that leap to mind. Rather, those place names legitimately may be understood as referring to—almost “quoting”—the city’s origins, which may have been founded in tribute to a religious figure. Indeed, it seems that place names simply function differently from mottos or pledges: they are neither assertions of fact nor declarations of beliefs but simple referents whose arbitrariness is more or less assumed by those who use them. Religious city names thus may be one instance in which a term has legitimately lost its religious meaning. Indeed, in most cases it will be easy to show that the name, like most names, does no more than refer to the city’s historical origins or the religious figure after whom the city was named.


2.   The National Motto

In the case of the national motto, the presumption of religious meaning could not be rebutted. The government could show neither that it lacks true illocutionary force—when posted in schools or stamped on coins, it is not a mere placeholder or referent—nor that the motto’s sociohistorical context is free of divisiveness or religious subordination.

Courts should not ignore the fact that the motto is associated with periods in American history of intermixed religious and patriotic sentiment—namely, the Civil War and the Cold War. These periods were moments not just of generic religious sentiment but of attempting both to assert and consolidate the supremacy of God in the nation. And inevitably, this assertion and consolidation was accompanied by an intent to exclude and label as unpatriotic anyone who—like the godless communists—rejected the view embodied in the phrase.

It is precisely this intermingling of piety and patriotism—the national unification under the umbrella of religion that is both described and enforced by those practices—that is troubling. Courts’ description of the national motto as merely a historical acknowledgement obscures the religious and religiously divisive history of these practices by making them synonymous with patriotism. A presumption that the national motto has enduring religious meaning should not, therefore, be rebuttable.

 

Acknowledgments:

Copyright © 2010 Duke Law Review.

B. Jessie Hill is an Associate Professor at Case Western Reserve University School of Law.

This Legal Workshop Editorial is based on the following Law Review Article: B. Jessie Hill, Of Christmas Trees and Corpus Christi: Ceremonial Deism and Change in Meaning Over Time, 59 DUKE L.J. 705 (2010).

  1. Pleasant Grove City v. Summum, 129 S. Ct. 1125 (2009).
  2. Buono v. Kempthorne, 527 F.3d 758, 768 (9th Cir. 2008), cert. granted sub nom. Salazar v. Buono, 129 S. Ct. 1313 (2009).

Post a Comment (all fields are required)

You must be logged in to post a comment.