Posted on 07/01/2002 4:20:03 PM PDT by seamus
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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