The motto is "patriotic and ceremonial" and "has no theological or ritualistic impact." ...
n2. In a very real sense they may be treated as "grandfathered" exceptions to the general prohibition against officially composed theological statements. Present at the very foundations, few in number, fixed and invariable in form, confined in display and utterance to a limited set of official occasions and objects, they can safely occupy their own small, unexpandable niche in Establishment Clause doctrine. Their singular quality of being rooted in our history and their incapacity to tempt competing or complementary theological formulations by contemporary agencies of government sufficiently cabin them in and distinguish then from new, open-form theological expressions published under the aegis of the state.
-- Hall v. Bradshaw, 630 F.2d 1018 (4th Cir. 1980)
A recent lower court ruling (Lambeth v. Bd. of Comm'r) has held that a challenge a new additional of "In God We Trust" to Government Center Building does not meet the requirements for an adequate claim. This is a fair reading of its own precedents and selected dicta from Supreme Court cases, though the latter body never directly dealt with the question. The opening quote is taken from one of the citations used to back up the opinion. The footnote in particular, however, suggests the problem.
I am quite aware that this is a relatively minor manner and for simple prudential reasons one that might be best left out of the courts.* Nonetheless, I fail to understand the truth to the analysis. The fact that the motto is "patriotic" does not seem particularly useful -- in fact, the use of a deity for patriotic purposes seems like a patent "establishment" of its religious content by the government for its own purposes. Likewise, the "ceremonial" part is used as means to suggest it is not an active act (like a prayer), but purely symbolic. Yet again, however, religious symbols are quite powerful (note the current controversy over flushing a Koran**). Finally, "ceremonial" has a quite religious flavor, especially in the current context.
The footnote underlines the problem. It is an adequate means to limit the harm and has a certain eloquent flavor to it. Nonetheless, the "incapacity to tempt" is a denial of reality. Quite repeatedly, individuals use such "patriotic and ceremonial" uses of God to defend much more egregious mixtures of church and state. The apparent need for the state to recognize that a deity looks over us suggests a justification for much more. And, oh do people so suggest with days of prayer, Ten Commandments displays, religious court oaths, religious holiday displays representing sacred events, and other less "ceremonial" acts such as funding of religious schools and charities that discriminate by religion.
Prudence requires some artificial lines, and the quoted ruling (striking down a prayer printed on state road maps) does it better than many (including perhaps the current day ruling directly addressing the motto and thus upholding state religious expression -- opening the door for more), but the bottom line fiction should be remembered all the same.
---
* When I first wrote this, Kevin Drum and others were in the midst of a debate on the level of importance such questions should be given to by progressives. Various blogs also have cited (often later than I) a recent ruling that allowed discrimination against nature religions (in particular, a Wiccan) in respect to a prayer at a local governmental meeting.
Overall, those who bemoan the wasted and/or ill advised efforts of progressives in this area are raising a strawman while (including in Drum's case) somewhat diminishing the problems being faced (including in respect to school prayer). Anyway, why should we apologize for defending the strong moral beliefs of those who oppose governmental favoritism? And, enough serious wrongs continue to occur so that sniping at the select few that are concerned with absolutes is just stupid.
** It is unclear what exactly occurred, but even after Newsweek's half-apology, questions arise. Why did government sources early on refuse to deny the story? Others have raised the allegation of flushing of a Koran as a means to get detainees to talk. And, Newsweek has not said that the act did not occur, only that their source(s) no longer is so clear on where the information was obtained.
As with Dan Rather, this has a dubious taste -- the Bushies are on their moral high horse, but they have no right to be so gleeful. Finally, as to the protests and violence arising from the story, it is unlikely that the unrest in Afghanistan would not have occurred -- something else could have been used to incite the opposition. Kevin Drum hits the nail on the head.