B. Jessie Hill (Case Western Reserve University School of Law) has posted Of Christmas Trees and Corpus Christi: Ceremonial Deism and Change in Meaning over Time (Duke Law Journal, Vol. 59, January 2010) on SSRN. Here is the abstract:
Although the Supreme Court turned away an Establishment Clause challenge to the words “under God” in the Pledge of Allegiance in Elk Grove Unified School District v. Newdow, the issues raised by that case are not going away anytime soon. Legal controversies over facially religious government speech have become one of the most regular and prominent features of Establishment Clause jurisprudence – and indeed, a second-round challenge to the Pledge of Allegiance is currently percolating, which is likely to result in resolution by the Supreme Court.
That resolution will depend on an understanding of the social meaning of the practice at issue. This Article therefore addresses the constitutional analysis of “ceremonial deism” – brief official religious references such as the words “under God” in the Pledge of Allegiance, the national motto “In God We Trust,” and the city names Corpus Christi and St. Louis. Courts have generally stated in holdings and dicta that ceremonial deism is constitutional because such phrases have lost their religious meaning through passage of time or rote repetition. To examine this claim, this Article draws on one particular branch of linguistic theory, known as speech act theory, as it applies to the problem of change in meaning over time. Because speech act theory is particularly useful for analysis of social meaning, I argue that some insights about the problem of ceremonial deism may be found there, lending depth to a problem that has gone almost entirely untheorized by those who have espoused it so far. Finally, I consider the implications of this analysis for the constitutionality of such official religious references. Ultimately, while recognizing that meaning can change over time in some instances, I argue that courts should be skeptical of this claim and should instead adopt a rebuttable presumption of enduring religious meaning when confronted with constitutional challenges to instances of ceremonial deism.