Put down your torches and pitchforks; Pledge ruling was right

The Free Lance-Star (Fredericksburg, Va.) ^ | June 30, 2002 | Jim Lakely (seamus)

[seamus]

Care to expand on that point, Mr. Ross? Where in law am I wrong? And since when does asking whether our Constitution -- or at least the current Supreme Court's interpretation of that Constitution -- make me "Communist Man."

Get a Freepin' grip.

[rwfromkansas]

rolls eyes

[F.J. Mitchell]

Anyone so adept at splitting hairs should be a practicioner of cosmotology, or at very least a barber.

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.

[colorado tanker]

"True that the Supreme Court made the mess and has the power to clean it up. But it is also possible to clean it up through a constitutional amendment overruling the Supreme Court decisions since Everson that have misinterpreted the First Amendment." I agree. Another possibility is we get a pubbie Senate this fall and two more conservative justices in the next two years. As the song says, one way or another, I'm gonna getcha . . .

[rwfromkansas]

Based on his profile, Lakely is seamus!

[discostu]

But with that kind of goofiness you're almost garaunteed to see an appeal which will probably be taken up. Although SCOTUS could dodge the bullet if the 9th reverse (they really can't if the ruling stands). Goofiness almost always garauntees review by a higher court.

[seamus]

Based on his profile, Lakely is seamus!

You win today's Columbo prize for dectective work! Congratulations.

[snarkpup]

... Eliminate this concept of God-given rights from the basis of our society's 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. ...

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.

[rwfromkansas]

BTW, according to the Annals of Congress, "an establishment of religion" is precisely that......one religion being compelled upon the citizens of the nation as an official state religion. It is no less than this.

[seamus]

Goofiness almost always garauntees review by a higher court.

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.

[aristeides]

Ninth Circuit did a stretch to take this case. As this article points out, the daughter doesn't object to saying "Under God." In fact, it seems Dr. Newdow is not the custodial parent. The Ninth Circuit cites precedent to the effect that a parent has a constitutional right to determine the religious upbringing of his child. I very much doubt if those precedents establish that a noncustodial parent has such a right. The Ninth Circuit should have dismissed the case for lack of standing.

[seamus]

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.

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.

[Amerigomag]

Perhaps in the long run, the 9th Circuit has done the nation a favor

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.

[discostu]

True, but given the general reaction I think SCOTUS might fear being torn limb from limb if they don't rule sanely. Ah well, one way or the other at least things will stay interesting.

[colorado tanker]

"they were getting into the habit of diagnosing conservatives with all kinds of phobias. LOL, I thought a little taste of their own medicine would be appropriate" Oh, the house liberals at the Denver Post love to do that! Here are a couple of their better moments. They insist Mallard Fillmore be on the editorial page instead of the comics page and a while back fired Mallard because he dared insult Ted Kennedy. Mallard returned by popular demand. Then they drove Mike Rosen to the News because they censored a column he wrote just before an election - because Rosen, a columnist, endorsed one candidate over another! But unlike the Post's endorsements, Rosen's were conservative. The editor, Sue O'Brien, insists she's not biased because she gets mail from liberals who want her to be even more liberal!

[rwfromkansas]

Oh, ok. Good point there.

[Southack]

No, the 9th Circuit was wrong, and here's why:
http://www.esrmetro.org/pledge.html
"I familiarized students with the controlling Supreme Court case, West Virginia State Board of Education et al. v. Barnette et al., 319 U.S. 624 (1943). This landmark decision rejected the compulsory Pledge of Allegiance. Subsequent court decisions further clarified that students are entitled to remain seated quietly in the classroom during the pledge, and cannot be expelled from the classroom, or subjected to any other discipline, harassment or retaliation for refusing to salute the flag."

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.

[evad]

Thanks for articulating this so clearly. It is the one and only argument that makes sense to me. I am bookmarking this thread so that I can return to your comment as needed.

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 society’s 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.

[Dr. Frank fan]

Interesting article.

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 pledge’s “under God” clause seems to violate—if only a smidgen—the 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 I’ll 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 state’s participation and direction—which is undeniable here—is 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 heart’s 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 belief—theism—can’t 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 citizen’s 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,

[MJY1288]

NUTS