JAMES LAKELY
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Posted on 07/01/2002 4:20:03 PM PDT by seamus
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JAMES LAKELY
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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 unconstitutional—when 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 timing—and the near universal screaming and rending of clothing over this decision—doesn’t mean it is necessarily wrong.
Granted, whenever any decision is handed down by this loony bunch, the proper initial reaction is contempt and ridicule—such 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 court—often unanimously—for 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 America—no matter their political stripe—denounce 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 doesn’t want your kids to be able to pledge allegiance to the land our fathers died to protect.”
That’ll 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, “What’s 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 theism—belief in a single supreme being.
While the pledge does not refer to a single religion—be it Christianity, Judaism, Islam, or even tree worshipping—it 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 theism—which our Founding Fathers adhered to and even referred to in the Declaration of Independence—is no big deal. But in a basic sense, the pledge’s “under God” clause seems to violate—if only a smidgen—the separation of church and state. It “establishes” a state-endorsed view in theism.
Don’t 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 courts—even, sadly, the Supreme Court—have used such a standard in many important free-speech cases.
And it doesn’t 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 I’ll change my mind. As of this writing on Friday morning, I’ve 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 state’s participation and direction—which is undeniable here—is the key question.
This is not to say that our courts have always been right on church–state issues. To the contrary, I thought the Supreme Court’s 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 God—even to a captive commencement audience.
In fact, this pledge ruling does not mean that little Kaitlyn can’t 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 heart’s content.
The court merely stated that the words “under God,” which endorse a religious belief—theism—can’t be in the pledge led by the state.
This decision is entirely consistent with a citizen’s 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 Lance–Star.
Well said. And it's amazing how this particular perspective is being missed by the talking heads on TV, and even in the print media. Glad to see so many FReepers get it.
Not so fast, my Bullish friend. It is not voluntary for the state-run schools to lead the class in the pledge -- at least it is not in Virginia, where schools are directed by the state government and the local school boards to lead the pledge, and I presume it's that way in California, too. That is why this case abuts the Establishment Clause. While individuals can opt-out, it is still the state making a statement that endorses monotheism.
Absolutely.
This is so simple to understand that there is absolutely no way it can be unintentionally misinterpreted.
So it is voluntary - voluntary on the part of the States.
That is why this case abuts the Establishment Clause. While individuals can opt-out, it is still the state making a statement that endorses monotheism.
You, my friend, have just illustrated why this case is not about the Establishment Clause.
The First Amendment doesn't prohibit the States from doing a darn thing!
That's incorrect.
The state has merely scheduled the Pledge.
The state can not legally override the U.S. Supreme Court, after all, and the SCOTUS has already ruled that in every case, the Pledge is voluntary (even for teachers in Virginia who have been told the time for the Pledge to be led).
Thus, the Pledge can not be banned, even in classrooms.
Voluntary speech can not be banned.
By that standard, Brown v. Board of Education is unconstutional, too. Was it not the states that ran the schools in Kansas? Was it not the Supreme Court (the federal government) that intervened when Linda Brown's right to an equal educational opportunity was being denied by a state's policy? Is it not the Supreme Court that has ruled creches on public land (be it owned by a state, the feds, or a local government) unconstutional?
"Based on his profile, Lakely is seamus!"
The heading of the article is a big help too ;-)
Short answer: He's a solid conservative with the soft-spoken style of leadership (lots of delegation) of Denny Hastert.
The problem of course, is that separation of church and state is really impossible, and is breached in some places (the financing of religiously affiliated colleges has long been upheld) and not others. It is impossible to find a golden thread that makes much sense. What makes sense is using common sense, and balancing the rights of one group vis an vis the other. Here the trauma of atheists having to hear the words "under God" is de minimus (more de minimus than having to listen to a prayer). Beyond that, when something has been going on for a century or more without much fuss, to suddenly find that it is unconstitutional requires overcoming a higher bar than otherwise.
So seamus is at once right but unwise, which makes him wrong. I hope everything is clear now.
The first amendment prohibits not only the establishment of an "official" religion, it also prevents the government from preferring religion to non-religion.
The first amendment makes religion an essentially private matter, not a public matter. That is a very good thing, in my humble non-believing opinion. The non-entrenchment of government with religion helps in fact to explain why religion has thrived in this country as in no other.
The only trick thing is the extent to which the state may "accomodate" religion. Lot's of court decisions address this tricky issue.
Accomodation is different from endorsing any one religion, or preferring religion to non-religion (or vice versa).
Technically speaking, the 9th district is surely right. State power cannot be used to compel or coerce or even pressure anyone into accept the proposition that the US is a nation "under god"
How could that possibly be reconciled with the first amendment??? This seems almost like a no-brainer to this conservative atheist.
My own view of religion is that religious belief deserves no more respect than irrational superstition. And I certainly don't want believers to promulgate with state power the absurd proposition that we are a nation "under god."
And you're wrong on the Pledge, btw. :^)
By what standard? The standard of reading the Constitution as if it is written in plain English ("Congress shall make no law...") and does not contain words it doesn't contain ("separation of church and state")? Yes, my standard is an odd one indeed, I'll grant... :)
Anyway, I don't know the basis for the ruling in the Brown case well enough to answer in more detail. I would like to point out that it's possible (isn't it?) that this ruling, while The Right Thing To Do (tm) was unconstitutional.
I will speak more generally and say that as I understand it, most often, the justification for courts making such rulings against states is that, even though the Bill of rights doesn't apply "to them" (per se), the States are bound by the 14th Amendment.
What does the 14th Amendment say? It says
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Now we can start to see why maybe a Brown vs Board of Education decision (desegregation) makes sense; segregating students by color seems like a pretty clear case of denying them "equal protection of the laws".
However, it's not so easy to stretch this into the idea that the States, because of the 14th Amendment, are also bound by the Establishment Clause. States tell schoolteachers "lead students in the pledge of allegiance, those who want to anyway".
Does such a law/policy "abridge the privileges or immunities of citizens of the United States"? Uh, no.
Does it "eprive any person of life, liberty, or property, without due process of law"? Get real.
Ok then, how about "deny to any person within its jurisdiction the equal protection of the laws"? This may come the closest but it still seems like it falls pretty short. No one is forced to say the pledge; the worst you can say is that some students are "forced" to hear it. But is that what "protection of the laws" is all about? Is it reasonable to expect that atheists be "protected" from hearing the word God? Seems like a stretch. Your mileage may vary, though.
Was it not the Supreme Court (the federal government) that intervened when Linda Brown's right to an equal educational opportunity was being denied by a state's policy?
I reckon, and I conjecture that they were using the 14th Amendment, specifically "equal protection". States had laws which didn't protect her equally, and the SC called them on it.
Now what does this have to do with your (and the court's) attempt to apply the Establishment Clause to the States? Remember, this wasn't about "equal protection" but about "establishment of religion". There is a sleight of hand here, because while States are required to do the former (the 14th Amendment), the 1st Amendment (Establishment Clause) is silent about State governments.
Is it not the Supreme Court that has ruled creches on public land (be it owned by a state, the feds, or a local government) unconstutional?
I'll take your word for it. Certainly wouldn't surprise me.
I probably would disagree with some of those decisions too. Best,
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