Ceremonial deisms. (The Culture War).

When we lose the right to be different, we lose the privilege to be free.

--Charles Evans Hughes

The proponents of strict separation between church and state have won many important victories in the United States. We've seen the end of forced school prayer, religious tests for political office, and the teaching of creationism. Of course, sometimes these issues are reignited under different guises: "moments of silence" in place of school prayer and "intelligent design theory" in place of creationism.

A slightly different but growing controversy in this country is the dispute over the constitutionality of so-called ceremonial deisms. After the terrorist hijackings of September 11, 2001, ceremonial deisms were present almost anytime a government official spoke or an official event was held. Ceremonial deisms are the little things government does to invoke religion in specific circumstances: such as opening sessions of legislature with prayer, placing a reference to God in the Pledge of Allegiance, and engraving "In God We Trust" on coins. They're called deisms because they're generic references to a supreme being and not references to specific deities, such as Yahweh or Allah.

Until recently, ceremonial deisms laid largely unnoticed in the war for separation between church and state because civil libertarians had so many other important battles to fight. When legal challenges were brought, they were dismissed out of hand as not involving government sponsorship of religion.

For example, although the Supreme Court has never ruled on the issue, federal courts have thrice upheld the use of "In God We Trust" on coins. The Ninth Circuit says this is because the inscription "is of a patriotic or ceremonial character and bears no true resemblance to a governmental sponsorship of a religious exercise." Other courts have held that no objective observer could consider this antiquated view of ceremonial deisms an endorsement of religion.

This may be beginning to change, however. Recently, a federal court held that Ohio's state motto, "With God All Things Are Possible," violated the separation of church and state. Although reversed on appeal, the court's decision was sound. If, for example, the state of Nebraska placed the motto "In Capitalism We Trust" on all of its license plates, wouldn't we say it's an endorsement of capitalism? Could we truly say the state is neutral on whether people should believe in capitalism, socialism, or communism?

The fact that ceremonial deisms like "In God We Trust" do not name specific religious figures is irrelevant. Even the term god excludes many religions. Wiccans who believe in a goddess are excluded, as are Hindus who believe in several gods instead of one. Native Americans who believe in nature and earth spirits are also excluded. For them, the implication is that they aren't part of the "We" and therefore are somehow less than American.

The Constitution not only bars the government from favoring a particular religion but also from favoring religion over nonreligion. Any objective observer would be forced to admit that a phrase like "In God We Trust" clearly indicates that theism is preferred to atheism or agnosticism. Research studies, of course, could easily show what citizens believe such symbols mean, but courts have invariably held that they can readily tell what an "objective observer" would think without the use of empirical evidence.

When courts act irrationally like this, religious minorities can only see ceremonial deisms as a cry for conformity instead of diversity.

Some courts uphold ceremonial deisms because they believe there is no real harm done. These courts, however, overlook the fact that the existence of ceremonial deisms is used to support other unconstitutional practices. As legal scholar Steven Epstein put it, "The implications of ceremonial deisms are far-reaching because courts frequently employ this amorphous concept as a springboard from which to hold that other challenged practices do not violate the establishment clause."

Religious conservatives have also realized this and often invoke ceremonial deisms to justify other laws. For example, according to the Associated Press, when the Colorado Board of Education considered whether to display "In God We Trust" in public schools, supporters said they "believe the courts cannot object to a phrase that appears on U.S. currency." Advocates of displaying the Ten Commandments in public schools, placing nativity scenes on public property, and having prayers at graduation ceremonies have all used similar arguments.

The line between church and state isn't always easy to draw. It doesn't require government hostility toward religion. But the free exercise rights of private citizens don't include the right to use the government as a vehicle to spread their beliefs.

Supreme Court precedent indicates that the government cannot use a religious means to accomplish a secular end. There is nothing served by ceremonial deisms (such as rendering an occasion "solemn") that cannot be accomplished by nonreligious invocations. The harm ceremonial deisms cause, on the other hand, is very real: they marginalize religious minorities and add strength to those who advocate even more entanglement between religion and government.

And if ceremonial deisms are really so nonreligious in character, why do religious conservatives fight so strongly for their preservation?

Jeremy Patrick is a third-year law student at the University of Nebraska College of Law. He welcomes feedback at jhaeman@ Hotmail.com. This is a modified version of a column that originally ran in the Daily Nebraskan.