Posted on 07/01/2002 4:20:03 PM PDT by seamus
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JAMES LAKELY James Lakely's archive
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Date published: Mon, 07/01/2002
THE HOPELESSLY LIBERAL judges on the 9th Circuit Court of Appeals sure picked a great time to declare the Pledge of Allegiance unconstitutionalwhen we are at war, and just a week before the first post-9/11 Fourth of July celebrations that promise to be the most patriotic and heartfelt in a generation.
But bad timingand the near universal screaming and rending of clothing over this decisiondoesnt mean it is necessarily wrong.
Granted, whenever any decision is handed down by this loony bunch, the proper initial reaction is contempt and ridiculesuch as when it ruled in 2000 that a cross-dressing illegal Mexican immigrant was entitled to political asylum.
And these judicial geniuses have been overturned by the U.S. Supreme Court more than any other circuit courtoften unanimouslyfor decisions that tend to invent new laws out of whole cloth, or set free the obviously guilty on the grounds that police got lucky when searching for evidence.
So it was entirely predictable to hear every politician in Americano matter their political stripedenounce the ruling when it was handed down Wednesday.
No politician in his right mind could behave in any other way. They all have nightmares of endless campaign commercials saying, My opponent doesnt want your kids to be able to pledge allegiance to the land our fathers died to protect.
Thatll end a promising political career faster than being caught having an affair with an intern who later turns up murdered.
But in the days that have passed since the decision, I have yet to hear a cogent explanation as to how this ruling is inconsistent with years of Supreme Court precedent regarding the separation of church and state. And as one who thinks most Supreme Court decisions regarding the separation of church and state are way out of line with common sense, I was hoping to hear one.
Instead, the outrated ask, Whats next, taking In God We Trust off our currency? Ending the practice of saying prayers before every session of Congress?
Well, if the Supreme Court wants to be consistent, yes.
The Pledge of Allegiance states that we are one nation, under God. No amount of bluster about patriotism, currency, or the singing of God Bless America at a baseball game changes the fact that such a statement refers to theismbelief in a single supreme being.
While the pledge does not refer to a single religionbe it Christianity, Judaism, Islam, or even tree worshippingit is still a reference to the belief in a single god. And the First Amendment tells Congress it shall make no law respecting an establishment of religion.
Not a religion, but religion in general. One could argue that such a vague reference to theismwhich our Founding Fathers adhered to and even referred to in the Declaration of Independenceis no big deal. But in a basic sense, the pledges under God clause seems to violateif only a smidgenthe separation of church and state. It establishes a state-endorsed view in theism.
Dont get me wrong. I abhor the attempts by oversensitive civil libertarians to cleanse public society of all public religious expression lest atheists become offended. We have no right to escape offense, even though many courtseven, sadly, the Supreme Courthave used such a standard in many important free-speech cases.
And it doesnt even really matter that this case was brought forth because an atheist in California was offended that his child might say under God in a public school or be stigmatized for not saying it (the irony is that the little moppet actually liked saying those words).
When someone can prove to me that the government is not behind the recitation of the pledge, then Ill change my mind. As of this writing on Friday morning, Ive yet to hear any of the outraged multitudes leap that logical hurdle. And stating that kids can opt out of saying the pledge is a nonstarter. Individual participation is irrelevant; the states participation and directionwhich is undeniable hereis the key question.
This is not to say that our courts have always been right on churchstate issues. To the contrary, I thought the Supreme Courts ruling forbidding valedictorians from invoking God during commencement addresses, or football players saying prayers in the locker room before a game, did not breach the unholy firewall.
In both instances the students, acting independently, were trying to enjoy their First Amendment right to the free exercise of religion.
The idea that we all must become atheists while standing on the grounds of a public school actually violates our freedom of religion rather than protect it.
The state should not be allowed to tell anyone, even public school students whose rights are regularly trampled by courts, that they cannot express their belief in Godeven to a captive commencement audience.
In fact, this pledge ruling does not mean that little Kaitlyn cant recite the Pledge of Allegiance in school. She could even form a Pledge of Allegiance Club, and walk out to the flag pole during recess and recite away, the under God included, to her hearts content.
The court merely stated that the words under God, which endorse a religious belieftheismcant be in the pledge led by the state.
This decision is entirely consistent with a citizens constitutionally protected right of religious freedom, and the prohibition of state endorsement of religion.
JAMES G. LAKELY is assistant editorial page editor of The Free LanceStar.
Get a Freepin' grip.
Those who seek to pervert the meaning of the words of the first amendment (Congress shall make no laws respecting the establishment of a religion or prohibiting the free excercise there of) into "separation of Church and State-always ignore "prohibiting the free excercise there of" . They split no such hairs to freedom of the press, in the same amendment. Double standards?
All the intentional misintrepations of this amendment in the past by self serving Judges, confuses the issue for those unable to understand such easily understood words, but in no way changes the fact.
Denying to Children in forced attendance at liberal public schools, the right and privilige to recite the Pledge of allegience, including, ONE NATION UNDER GOD, as the majority of parents wish, is a Government sponsored prohibition of the free excercise of Religion.
The 9th circuit court judge, revealed not his lack of understanding of the Bill of Rights, but instead, his total contempt for it and the rights of children to practice the faith of their parents, while honoring the Flag and all that it represents.
It is time that truth shaves the hair splitters bald.
You win today's Columbo prize for dectective work! Congratulations.
Exactly! If the phrase "under God" were not present in The Pledge, then something like it would still be needed to emphasize that the U.S. government is under a higher principle from which our rights are derived. (I am amazed at the number of commentators who are getting caught up in crowd madness and forgetting to point this out.)
The second word ("God") is probably the most compact way (in English) of saying "the higher principle from which our rights are derived" - though its use could be interpreted as a poke in the eye to non-believers.
If the intention of the phrase was to poke non-believers in the eye under the color of government authority, then it is indeed an outrageous violation of the First Amendment. But if the intention was to remind politicians of their true place in the universe's pecking order, then this phrase represents one of the foundations of our nation.
Ahhhhh. But moving to a the highest court (see ban on prayer by football players before a game) does not always guarantee a lack of goofiness.
And there is the key question. I truly hope that they come down on your second point, but reams and volumes of precedent in our court system suggests that will not happen. That was my point. And that the world would not come to an end if "under God" was taken out of the Pledge.
The only favor the 9th Circuit could do for this nation is to limit their jurisdiction to about 10 acres in the center of South San Francisco Bay.
That decision means that the Pledge is voluntary.
The 1st Amendment says that government can not ban voluntary speech.
Yet the 9th Circuit tried to BAN teachers from being able to choose to say a voluntary Pledge.
That's unConstitutional, and that's why it will be voided either by the full 9th Circuit or by the Supreme Court.
Game. Set. Match.
Ditto, ditto, ditto...it's so good I'm repeating it.
The statement that this is a nation "under God" is less a statement of faith than it is a statement of historical fact. The foundational principle of the nation and it may be a unique foundational principle among nations is the supposition that "all men are CREATED equal," and are "endowed by their CREATOR with certain inalienable rights" rights not created or granted by the state, but rights bestowed upon man by God. Since they are bestowed by God, these rights that are absolute; they are not based on the subjective or capricious whim human rulers. This is a critically important distinction. Eliminate this concept of God-given rights from the basis of our societys political values and what we have to revert to are rights and liberties that are derived from the power of the state and the state will always have the power to take those rights away. God-given inalienable rights cannot be taken away; and where they are denied by the state, the state has lost its legitimacy to exist (so says our Declaration of Independence).
The founders clearly acknowledged that this was a nation founded "under God" or Providence. Many people today may not acknowledge God, but this dependence and acknowledgement of God is an important part of our national heritage. The atheists may not like it, but this is historical fact, and as Americans who love their country, they should be willing to acknowledge that historical fact.
I have yet to hear a cogent explanation as to how this ruling is inconsistent with years of Supreme Court precedent regarding the separation of church and state
I think this is the key point. I don't think the ruling is inconsistent with precedent, or, more generally, the historically-evolved understanding of the establishment clause. The ruling was entirely predictable and probably it was just a matter of time before some court ruled this way, given the history and precedents and so on.
That doesn't mean the ruling was Constitutionally correct, mind you.
Look at the phrase you used: "separation of church and state". I know we are all taught to memorize that phrase as kids (another violation? ;) but nowhere does that phrase appear in the Constitution.
The Constitution's First Amendment prohibits "Congress" from making a law "respecting the establishment of a religion".
If kids are reciting this form of the pledge in schools because Congress made a law saying they had to, then I would even agree with the decision; there would be a big, big Constitutional problem.
I don't think that's what's going on, though. 1. Schools are (at least nominally) run by the states. 2. Kids aren't forced to say this pledge/prayer/whatever you wanna call it.
So I just don't see an "establishment of religion" in any of this, sorry (rather, if this is an "establishment of religion", then so are 90% of the other things which government does which I have to endure, from recycling programs (the religion being Environmentalism) to anti-smoking crusades (the religion being Anti-Smoking Zealotry) to regulations about whether I can buy and own a car which emits a certain amount of CO2 (the religion being Global Warming).
Further, the only involvement of "Congress" seems to be their 1954 vote on the wording of the pledge. Big deal. If the courts have a problem with it, and want to use the First Amendment, then it seems to me the most they can legitimately do is to strike down that 1954 vote of Congress as unconstitutional. I wouldn't even argue with such a decision. The states, meanwhile, could keep on using the "under God" phrasing to their heart's content.
At least, that's how it would be handled if we were actually talking about the First Amendment rather than the phrase "separation of church and state".
And the First Amendment tells Congress it shall make no law respecting an establishment of religion.
Right. It doesn't tell state-salaried schoolteachers (who aren't federal employees, as far as I know... yet) that they shall not utter the word "God". This is a later invention.
Again, given the historically evolved understanding of the establishment cause, it's an understandable invention and is consistent with a modern understanding of the First Amendment ("separation of church and state"). But it surely is an invention, not to be found in the original wording of the First Amendment, which after all is only addressing Congress.
But in a basic sense, the pledges under God clause seems to violateif only a smidgenthe separation of church and state.
I agree. It doesn't violate the actual First Amendment, though. There is a difference.
When someone can prove to me that the government is not behind the recitation of the pledge, then Ill change my mind.
The government certainly is behind the recitation of the pledge. Congress approved the wording of the pledge (so I am told), and the various States have woven it into their various education programs.
The latter action is not actually covered by the First Amendment.
And stating that kids can opt out of saying the pledge is a nonstarter. Individual participation is irrelevant; the states participation and directionwhich is undeniable hereis the key question.
You're close. It's Congress's participation and direction which is the key question (because the First amendment applies to Congress).
She could even form a Pledge of Allegiance Club, and walk out to the flag pole during recess and recite away, the under God included, to her hearts content.
This is not a given (even though it should be). I think I'll wait and see if/when this happens. Someone might complain and take it to the courts. We'll see, though.
The court merely stated that the words under God, which endorse a religious belieftheismcant be in the pledge led by the state.
It's true, that's what the court did. The basis for saying this, however, is not to be found in the actual wording of the First Amendment. That's my only problem with it.
This decision is entirely consistent with a citizens constitutionally protected right of religious freedom, and the prohibition of state endorsement of religion.
Yes, it is consistent with "the prohibition of state endorsement of religion".
There is no such prohibition in the actual First Amendment the way it is written, however. The First Amendment prohibits Congress from doing something. Go check it out. It doesn't say what you think it says. Best,
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