in a 60-page opinion (Newdow v. Rio Linda Union School Dist.) by Judge Bea, joined by Judge D.W. Nelson; Judge Reinhardt dissents, in a 133-page opinion.
Thanks to How Appealing for the pointer.
in a 60-page opinion (Newdow v. Rio Linda Union School Dist.) by Judge Bea, joined by Judge D.W. Nelson; Judge Reinhardt dissents, in a 133-page opinion.
Thanks to How Appealing for the pointer.
anonymous says:
I wonder if Judge Reinhardt realizes that he would probably be at least somewhat more effective (in the sense of being in dissent or reviewed and reversed by the Supreme Court less frequently) if his tone weren’t so strident and as arrogantly dismissive of colleagues (and supervisors in Washington) who don’t share his point of view. Or whether he’s just given up in his own mind and would rather be “right” (to the Warren-Court-constitution-in-exile movement) than be in the majority.
March 11, 2010, 6:25 pmARCraig says:
I’m much more offended by the existence and history of the bizarre, statist Pledge than I am the fact that stupid religiosity was added to it in the 50s. America needs no loyalty oath for the general citizenry. Besides, even if you like the supposed patriotism, mindless recitation has turned the Pledge into a meaningless cliche (and it was pretty lacking on substantive content to begin with).
March 11, 2010, 6:30 pmARCraig says:
What a novel idea.
March 11, 2010, 6:31 pmhieronymous says:
One can only hope that Judge Reinhardt will soon take senior status to spend more time with his wife, Ramona Ripston, who recently retired as head of the So. Cal. ACLU.
March 11, 2010, 6:33 pmEMB says:
Is the Supreme Court likely to consider this on its merits this time around?
March 11, 2010, 6:38 pmyankee says:
Hey, it works for Scalia!
This.
March 11, 2010, 6:41 pmruuffles says:
The majority is less than half that length. Oral arguments were heard at the end of 2007, decision handed down in early 2010, which is over two years. You know what’s right smack in the middle of that time period (similar to how SCOTUS punted on the first case in 2004)? Or does it really take this long, whereby I shudder at how long Reinhardt would toil at a CU dissent.
What was his recusal policy for cases involving the ACLU?
March 11, 2010, 6:50 pmShelbyC says:
Yeah, it’s really embarassing around foreigners. We’re supposed to be the land of the free and here we have the state “encouraging” us to take a loyalty oath.
March 11, 2010, 7:00 pmporterhouse says:
As somebody who grew up in Texas with many loyal Americans whose families practiced Hinduism and Buddhism, as sell as families that practiced Islam, Judaism, and Christianity–I have never understood why we as a nation continue to keep outdated divisive language in our Pledge of ALLEGIANCE. The “under god” language undermines the very purpose of the pledge–promoting liberty is essential to religious freedom, but the pledge promotes monotheistic religion as vital to our nation when it is religious freedom that is vital to our nation!
March 11, 2010, 7:03 pmhieronymous says:
ruuffles:
Reinhardt is a bad judge, infamously bad, no doubt, and not a terribly friendly human being on top of that. However, he’s not unethical; he recuses himself when cases involving the ACLU come up.
March 11, 2010, 7:33 pmuh_clem says:
Agree. Swearing allegiance to the powers that be in a ritual of public abasement is something that should have gone out with feudalism. Am I the only one that finds it ironic that “freedom loving” Americans across the nation regularly prostrate themselves to a symbol and swear obedience to the state?
March 11, 2010, 7:35 pmArthur Kirkland says:
It is a paltry God who would require state-sanctioned fealty mouthed by captive audiences of six-year-olds.
That’s why the T-shirt in my closet, an authority I would stack against all the cites and footnotes in the combined Westlaw/LexisNexis universe, lets the Pope decide the issue.
March 11, 2010, 7:46 pmruuffles says:
I should have been more specific. His wife heads (headed?) the SoCal ACLU. Does he recuse only for SoCal ACLU or any ACLU branch? I’m curious not because I think he’s unethical, but because the cases he throws his weight around in tend to also be the ones the ACLU would be interested in.
As a related question, Goodwin Liu signed some brief against Prop 8. Would he have to recuse if confirmed to the 9th ct?
March 11, 2010, 7:49 pmLessinSF says:
He’s got the better argument and opinion here, though.
March 11, 2010, 8:05 pmDavid M. Nieporent says:
What kind of parent names his kid “Roechild”?
March 11, 2010, 8:11 pmDavid M. Nieporent says:
In addition to the many other obnoxious comments in Reinhardt’s dissent, what the bleep is up with footnote #6 and his utterly gratuitous reference to the Tea Party movement?
March 11, 2010, 8:22 pmDave N. says:
I would note that this panel was not 2 conservatives ganging up on poor liberal Judge Reinhardt.
Judge Dorothy Nelson, who joined Judge Bea’s opinion, is quite liberal on most issues.
And in answer to the question about cert., I would put the odds at close to zero.
March 11, 2010, 8:23 pmAnonsters says:
I have to agree with everyone else that the Pledge is super creepy. I never said it in school because it creeped me out then, and it still creeps me out. On the other had, I didn’t feel comfortable not saying it, either, because I would get remarks from teachers for not moving my lips, or for not putting my hand over my heart, even though I would stand up with everyone else. Of course, I went to a Catholic school, and I was the kid who was a strident atheist in school. So my stock response was, “I’m an atheist heathen, sir.” I guess I’m lucky the teachers were so tolerant of me.
March 11, 2010, 8:25 pmArthur Kirkland says:
Until a lineup change gives libertarian and liberal principles a stronger position, I agree. When the role of conservative positions wanes, however, this issue should be a prime candidate for review.
March 11, 2010, 8:32 pmsubpatre says:
Better argument?
All the while ignoring the fact —the evidence and a clear record that he later quotes— that all the children in the suit were not coerced. Indeed, none felt any compulsion whatsoever to recite the Pledge, including a five-year old on her very first day of kindergarten.
Compel – to force, drive, or constrain.
March 11, 2010, 8:43 pmIt’s not compulsion when a child claims to feel ‘uncomfortable’ not reciting the pledge, yet feels personally compelled to tell teachers “I’m an atheist heathen”. LOL
Repeal 16-17 says:
I agree. OTOH, what are the odds of mini en banc review?
March 11, 2010, 8:50 pmRandy says:
subpatre: “Indeed, none felt any compulsion whatsoever to recite the Pledge, including a five-year old on her very first day of kindergarten.”
Then why bother doing it? Surely, students who feel a need to pledge allegiance to a flag can do so on their own time, at home, during lunchtime or whatever. If it’s a pointless exercise, perhaps the time could be better spent teaching math or something.
March 11, 2010, 8:54 pmAnonsters says:
Note that I did not say that to teachers when was I five, or when I was in kindergarten. That was in high school.
March 11, 2010, 9:03 pmOwen H. says:
Because it is ok to make them feel uncomfortable, as long as you don’t use force. oy.
btw, Red Herring argument.
March 11, 2010, 9:22 pmSun Tzu's Nephew says:
Indeed. Let us pray….
March 11, 2010, 9:23 pmSun Tzu's Nephew says:
Not to the powers that be, any more than the military swears to support the president….the pledge is “…to the flag….one nation…..” You can leave the G-D out if you want, this Jew never minded it being there.
March 11, 2010, 9:27 pmSun Tzu's Nephew says:
I’m 54, and attended public schools in Los Angeles… I recall students in elementary schools not reciting the pledge along with the rest of us. Their only requirement was to not be disruptive during the pledge.
March 11, 2010, 9:30 pmAnonsters says:
And?
March 11, 2010, 10:21 pmBob from Ohio says:
I predict that no matter how many liberals get on the Court, they would never grant review of a decision upholding the Pledge. There is almost no upside to it. A decision striking down the “under God” part of the Pledge would be seen as a gross insult by the vast majority of the American people. It would be a heaven sent gift to the GOP and would likely be reversed by a Constitutional amendment anyway. Why would the Court run such a risk to its legitimacy?
I also think you vastly overestimate liberal opposition to “under God”.
March 11, 2010, 10:31 pmRKV says:
All of you who find the Pledge of Allegiance “creepy” can go pound sand. The rest of your country doesn’t share your fine sense of irony. We find you cynical and self-centered. Tradition is something we do. You on the other hand fail to understand what is important and indeed essential to the American experience – that there is, in fact, an American identity, and that such is valuable and worth defending. For all of you who give a shit what foreigners think, I’d point out the part of the French national anthem that says “qu’un sang impure. Abreuve nos sillons.” If you can’t read the French, I won’t translate it for you even though I could. Let’s just say you’re not as cosmopolitan as you imagine yourselves to be.
March 11, 2010, 10:32 pmAnonsters says:
Why does it make you feel so insecure that other people don’t agree with you? Why do you need everyone to conform? And is this drive for conformity, this demand for everyone to bend themselves to everything the majority may happen to think right at any given time, an American tradition? An American ideal?
Let me summarize, for you:
Grow up.
March 11, 2010, 10:44 pmRKV says:
What makes you project your self on others that describes affirming something as simple as the Pledge as insecurity? You ask about conformity, but what is that but an attempt to drive others to conform with your opinion? Don’t want to say the pledge? Don’t. No one’s forcing you to. If others feel differently then grow up enough yourself to deal with it. Your attempt at non-conformity has become conformity rube.
March 11, 2010, 10:53 pmM. Simon says:
How about instead of pledging to the flag we pledge to the Constitution?
I do. And LOUD. I get stares. Heh.
If it is good enough for new citizens and the military (I took that pledge too) it is good enough for me.
March 11, 2010, 10:55 pmAnonsters says:
I merely said that I thought the Pledge was creepy. You were the one who insisted that those who think the Pledge is creepy should “pound sand,” are “cynical and self-centered,” who stupidly “give a shit about what foreigners think.”
I described the Pledge as, in my opinion, creepy. You are the one who got butthurt.
I repeat: Grow up.
March 11, 2010, 10:58 pmAnonsters says:
What about those people who think the Constitution is a flawed document? What about those people who think the Constitution is irreperably flawed?
March 11, 2010, 10:59 pmM. Simon says:
I note that no one here mentions the history of the pledge. It was invented by a Socialist.
Making the Pledge
March 11, 2010, 11:01 pmM. Simon says:
What about those people who think the Constitution is a flawed document? What about those people who think the Constitution is irreperably flawed?
Well if you take the military pledge and the citizenship pledge seriously such people are citizens of the wrong country.
It happens all the time.
But I wouldn’t force anyone to take such a pledge unwillingly. It is often useful to find out who the enemies of the Republic are.
March 11, 2010, 11:05 pmRKV says:
So if I riff off Howard Zinn and mention that the founders of our country owned slaves, would that find M. Simon a reason to hate the pledge too?
I have no idea what butthurt is. Nor do I feel the need to know. What I do know is your idea of creepy is your own problem. Millions of Americans do fine with the pledge and somehow that bothers you. Get. Over. Yourself.
March 11, 2010, 11:10 pmAnonsters says:
And yet people like me have never, and will never, take either, given that I’m a natural-born citizen.
I guess my beef is with the notion of pledging one’s allegiance. I’m like Jesus. I think that it is not what you are seen to say in public, but what you do and why you do it, that matters.
March 11, 2010, 11:13 pmAnonsters says:
You continue to attack me, even though the only thing I’ve said is that I find the Pledge creepy. Not that I find those who say the Pledge creepy, mind you. Just that the Pledge itself is creepy.
And that I’ve been made to feel uncomfortable for not saying it by comments made to me by teachers when I was in school, comments directed at me because I chose not to say it. Not that I was uncomfortable because I wanted everyone else not to say it. Because not saying it had public consequences for me.
I repeat for the third, and final, time: Grow up.
March 11, 2010, 11:17 pmsubpatre says:
It was not an argument, it was refuting the foolish blather of ‘a better argument’ by Reinhardt. The evidence —all the evidence— showed all of the plaintiffs were not, and did not feel, compelled by the pledge. Citing ‘compulsion’, as Reinhardt did, is wrong since the evidence shows there was no compulsion.
What part of “the evidence” can’t you understand?
.
Do keep up. Everyone recognizes your behavior, both for what it was, but also why and when it happened. I did something similar. Seen as ‘principled resistance’ by its actors, in reality it’s ‘acting like a jerk’ —boringly common at that age— and most of us later grow up.
The 5-year old kindergärtner, a plaintiff in this case, was similarly unfazed by the Pledge; perhaps showing more maturity than you realize.
March 11, 2010, 11:33 pmAnonsters says:
You were talking about this case, with the 5-year-old, and the dissent’s argument that there was compulsion involved, and then you said, “It’s not compulsion when a child claims to feel ‘uncomfortable’ not reciting the pledge, yet feels personally compelled to tell teachers “I’m an atheist heathen”.”
In other words, you were blending this case, with the 5-year-old, and my previous comment, or at least that’s how it appeared to me. So I thought it worth pointing out that I wasn’t telling teachers I was an “atheist heathen” when I was 5.
I’m keeping up just fine. Thanks for your concern, though.
March 11, 2010, 11:45 pmDavid M. Nieporent says:
Is Reinhardt’s dissent the first judicial opinion to use TinyURL?
March 11, 2010, 11:54 pmAnonsters says:
Nope.
AMERICAN EXPRESS BANK LTD.v. BANCO ESPAÑOL DE CRÉDITO, S.A., 597 F.Supp.2d 394, 403 (S.D.N.Y. 2009):
Richard J. Holwell was the judge.
March 12, 2010, 12:21 amAnonsters says:
It’s also used in:
March 12, 2010, 12:33 amChris Travers says:
Porterhouse: As a Norse Neopagan with Indo-Europeanist leanings, the bit “Under God” doesn’t really bother me. We have twice as many Roman goddesses mentioned in the Pledge as we do Judeo-Christian figures.
In terms of form, the Pledge is actually quite polytheistic. I have never understood why monotheists defend it with such effort. Oh well, works for me… >:-)
March 12, 2010, 1:04 amHadur says:
I don’t think anyone is brainwashed by the fact that they say the pledge every morning. I bet many of the 6th graders who take the pledge these days go home later and blog about their opposition to the war in Afghanistan and about how Obama should be more liberal.
March 12, 2010, 1:22 amDave N. says:
No chance for en banc, either. As I said upthread, Dorothy Nelson is quite liberal. Her recommendation against en banc will keep all other judges with the possible exception of Harry Pregerson from voting to take the case en banc.
Newdow will undoubtedly seek en banc review. My wager is that no active judge (including Reinhardt) will even call for a vote (after all, he has already had his say).
March 12, 2010, 1:46 amnotropis says:
“What about those people who think the Constitution is irreperably flawed?”
They should probably take spelling lessons….
March 12, 2010, 4:10 amJim C. says:
Reinhardt is completely right, as is Newdow.
There’s no way in the world that anyone can sensibly claim that “under God” is not religious language, and does not invoke a belief in the almighty, regardless of whether it is the “founder’s” view or anyone else’s.
And even if the words do not constitute a “prayer,” you don’t need to have a prayer to be in violation of the Establishment Clause. The 10 Commandments aren’t prayers.
There’s a good reason why Reinhardt is angry and arrogant right now– this Opinion is evasive and foolish. And there’s another good reason why SCOTUS backed away from Newdow’s original case and chickened out by denying him standing– they knew he was right.
March 12, 2010, 5:28 amJim C. says:
You can be compelled to do something even if you don’t feel compelled. And since when do kids make policy?
March 12, 2010, 5:33 amdearieme says:
“…with liberty and justice for all”: but which? The two are so often incompatible.
March 12, 2010, 5:33 amPersonFromPorlock says:
I know a woman whose religion is based on the idea of a feminine Deity; a New Age belief, if you will, but sincerely held. So what would happen if she objected to “under God” not on the basis of the Establishment Clause but as gender discrimination?
Just wondering.
March 12, 2010, 7:30 amOwen H. says:
And yet, the dissent thought that it was compulsion. Nor did you answer my question. Is it ok to make the student feel uncomfortable, as long as they actually compel?
I don’t object to the Pledge itself, or find it creepy. Pledging in this fashion is about the concepts the flag represents. I firmly believe that having those added words in the Pledge is unconstitutional. When added, the clearly stated motive was to promote the concept of the US as a “Christian” nation.
March 12, 2010, 7:31 amS says:
I like Judge Bea, personally, having appeared before him when he was a trial judge, but I felt like I was reading the same points over and over again. There is no way that opinion should have been that long. (I haven’t had time to wade into Reinhardt).
March 12, 2010, 7:50 amjrose says:
According to the coercion standard established in Lee (“subtle and indirect public and peer pressure”), I am persuaded the Pledge coerces. Even the majority in this case said so (“We agree that the students are being coerced”). The question is whether they are being coerced to perform a religious or patriotic act.
March 12, 2010, 8:07 amSun Tzu's Nephew says:
And?
The question is not new, the pledge is not coercive to anyone who doesn’t want to say it, and the counter argument is both asinine and petulant.
March 12, 2010, 8:30 amSun Tzu's Nephew says:
I took that oath (in the military) as well.
Is there a hierarchy of oaths? After all, we Pledge allegiance to the flag, new citizens take the oath of allegiance with the classic language of I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or which I have heretofore been a subject or citizen and in the military there is the commissioning/enlistment oaths (I do solemnly swear (or affirm) to support and defend the Constitution of the United States….). Then there is the only Constitutionally mandated oath, the one for President.
I always considered my military oaths to be somehow more significant than the pledge. Perhaps because it was recited far less often?
March 12, 2010, 8:39 amDotar Sojat says:
It wouldn’t bother me to remove the “under God” from the Pledge of Allegiance, as it was so recently added and strikes me as inappropriate, but this piling on the Pledge makes all of you look like a bunch of petty fools.
March 12, 2010, 11:11 amqetzal says:
Sun Tzu’s Nephew:
From p. 3923 of the majority opinion:
March 12, 2010, 11:24 amRoger says:
Anonsters:
I guess my beef is with the notion of pledging one’s allegiance. I’m like Jesus. I think that it is not what you are seen to say in public, but what you do and why you do it, that matters.
You lost me at, “I’m like Jesus”.
March 12, 2010, 11:50 amAnonsters says:
See Matthew 6:1-6, 7:15-20.
March 12, 2010, 12:06 pmJaimeInTexas (Jam) says:
But not such “higher power” that the SCOTUS is under him;her;it;-n/a.
And isn’t admitting that the “government’s power is limited by a
March 12, 2010, 12:24 pmhigher power” an admission of religion truths — an establishment of religion?
JaimeInTexas (Jam) says:
And, to point the obvious, almost all of the historical references are to individuals making a statement in a speech.
March 12, 2010, 12:39 pmCJColucci says:
Why does it take 60 pages to say “de minimis non curat lex”? That may not be an entirely persuasive argument, but it is essentially what the majority is saying, and, since it doesn’t establish some awful principle, as a full-bore, honest rationale for the result would (imagine what Scalia or Thomas would do if they got their hands on this), I’m willing to live with it.
March 12, 2010, 1:01 pmTed says:
I can’t see how it’s not. The words should be taken out of the pledge, off the money, out of the military, etc. I acknowledge that those instances probably do not spur people to become religious, but it legitimizes, though the auspices of authority, the belief in any god, one or many, and thereby artificially facilitates or “props up” that belief.
For instance, how is a kid to respond to attacks from his peers that god must exist because the the “grown-up” people in our government — perhaps role models to the nerdier types — obviously believe in god’s existence because they say so explicitly on objects of value and in association with revered concepts? The kid could say they’re all crazy lunatics for believing in make-believe BS, and he’d probably be right, but it wouldn’t help him, he’s just a kid and they’re the “grown-ups.” Really! That argument doesn’t even work with the “grown-ups.”.
The government should not play any role whatsoever in supporting the existence or non-existence of a god or gods. It should play the role of a hardcore devout agnostic, refusing to get suckered into the ridiculous games that people call religion. This means taking no position at all on questions of religiosity, taking a hard look at anything that might be inconsistent with this position and eliminating it entirely from the operations of the government.
I have no problem with people who work in the government being religious, I don’t even have a problem with them passively expressing their beliefs while working, such as wearing religious jewelry or clothing, etc. But they should absolutely refrain from actively promoting or expressing their beliefs in connection with their job. When it comes down to it, I do not want people who need an imaginary friend to help them make decisions making decisions for me.
Ah, I feel so much better now.
March 12, 2010, 1:04 pmJaimeInTexas (Jam) says:
Ted: It also seems to me that the reference to government powers derived from God is a sort of appeal to “divine right of kings”. That is why the SCOTUS can reach decisions that bear no relation to the text of the Constitution — the SCOTUS challenge is, if they are wrong let God remove us.
March 12, 2010, 1:16 pmzuch says:
Yes. Rote (and mindless) recitation of loyalty pledges written by socialists.
You want some real “tradition”? Become a Catholic, an Illuminati, a Mason, or sumptin’ like that.
Cheers,
March 12, 2010, 1:45 pmNYTwin81 says:
As an originalist, I tend to agree with Justice Scalia’s position that a pledge doesn’t violate the Constitution merely because it includes a general, deistic reference, since, among other things, Congress and the Supreme Court have traditionally opened with a prayer and/or a reference to God.
As a textualist, I’d add that instituting a pledge in schools that includes the words “under God” but that is generally about allegience to the country doesn’t strike me as a law “respecting an establishment of religion.”
As a lawyer, I don’t know the right result under the current precedent, because I haven’t had the opportunity to review it adequately. I agree (having read the first few pages) that Judge Reinhardt’s dissent is overly strident, but I do wonder whether his argument about the 1954 Congress’s religious intent may have some weight.
As an atheist, I can report that I said the Pledge of Allegiance throughout elementary school and it never affected my thoughts on religion in the slightest.
March 12, 2010, 2:00 pmbob says:
1. Reinhardt always recuses himself from cases involving the So. Cal. ACLU, which his wife headed (until her recent retirement). You will find no case in the 9th involving both So. Cal. ACLU and Reinhardt. There are a few cases in which Reinhardt sat that involved other ACLU organizations. This is not unusual. For example, the judges who served in the DoJ, say, Bybee, do not recuse themselves from every case involving the U.S. government (or even most cases involving the DoJ).
2. Newdow will most likely file a PREB. In the unlikely case he doesn’t, a judge will likely call for an en banc vote — a majority of the 9th voted to deny the PREB in the first case; surely one of that majority agrees with Reinhardt (say, oh, Harry Pregerson).
Given the relative closeness of the first PREB vote (there were many on-the-record dissenters), as well as the influx of conversative appointees since then, it is very doubtful PREB will be granted (or cert. later granted).
March 12, 2010, 2:12 pmzuch says:
What about adding those words to an already-existing pledge? Is that act religiously neutral?
Cheers,
March 12, 2010, 2:19 pmzuch says:
As soon as I was old enough to understand what I was saying, I stopped repeating it. When did you stop? And what does it say about such recitations of the pledge that such occurs? Aside from its unconstitutionality, is it really such a good idea from a policy standpoint? What purpose is served?
Cheers,
March 12, 2010, 2:22 pmzuch says:
On the subject of the usefulness or desirability of the Pledge of Allegiance recitation:
The Thomas More Law Center filed a brief in the Newdow v. Elk Grove case in support of the recitation of the pledge. Ironically, their namesake made clear his own opinion on the utility of such pledges … to the extent of offering his own head in protest.
Cheers,
March 12, 2010, 2:27 pmDavid M. Nieporent says:
Let’s assume it isn’t. Contrary to Reinhardt’s passionate but flawed analysis, it wasn’t at issue in this case. Plaintiffs had no standing to challenge that. The only thing they could challenge was the school district’s policy, and there’s no evidence that said policy was anything other than religiously neutral.
March 12, 2010, 3:24 pmChristopher Cooke says:
The Pledge case makes clear how convoluted the Supreme Court’s Establishment Clause jurisprudence has become and how unpopular the atheist is in our society (I am not an atheist, by the way). Obviously, the words “under God” were inserted to make clear that the USA was not a land of “godless” communists, unlike the USSR, China, etc.
Does the reading of the entire pledge, with those two words added, make it a religious activity? Probably to an atheist, who also objects to the ceremonial recognition of religion in coins, Congress, etc., but maybe not to most others.
March 12, 2010, 3:32 pmJohn Herbison says:
I have read the majority opinion but not the dissent. I find curious the proposition that the phrase, “one nation, under God”, is not an endorsement of religion. It seems to favor theism over non-theism and to favor monotheism over polytheism.
For those who contend otherwise, would it make a difference if the phrase in question were “one nation, under no god”?
March 12, 2010, 3:48 pmzuch says:
So, say the RCC writes the Lord’s Prayer. I have no standing to sue them for their act. Then the local school board decides that they should hold organised recitations of the Lord’s Prayer every day, maybe for the (alleged) purposes of teaching proper diction. What result?
It may be that I have no standing to sue Congress for their clearly unconstitutional act of rewriting the Pledge with some religious mumbo-jumbo. But when someone tries to jam that piece of unconstitutional foofrah down my throat under the auspices of government action, regardless of their “beneficient” intentions (and keep in mind Justice Brandeis’s quote), I think I do develop standing….
Cheers,
March 12, 2010, 3:49 pmzuch says:
“Ahhh, eff them, they’re atheists anyway. Who cares, outside of a few people with thin skin and even more tenuous morals….”
Cheers,
March 12, 2010, 3:52 pmzuch says:
For those that think the addition of the two words to the Pledge are de minimis, would they feel the same if it said “under Allah” or “under Cthulhu”? And if it is de minimis and the words are meaningless, the obvious solution is to void the ’50s law, and restore the pledge without the words. Who could object?
Cheers,
March 12, 2010, 3:55 pmBob from Ohio says:
Who do ever vote for?
One member of Congress is a declared athesist, even most liberal politicians claim to believe. Do you just assume some are lying and vote for a liar anyways?
March 12, 2010, 4:04 pmyankee says:
One or many? It says “God,” singular and with a capital G. And is there any doubt that the god in question is YHWH? There are other monotheistic gods, such as the Deist God or Krishna (who is the Supreme Being in many forms of Hinduism) but both are quite different from YHWH. But the god referenced cannot be the deist God, since the government cannot really be “under” a god who takes no interest in worldly affairs. Nor is there any evidence that Congress thought it was declaring the U.S. to be under Krishna, Allah, or some other such being. Rather, all the evidence is that Congress intended “God” to refer to YHWH. (And if the Pledge declared the nation to be under any supreme being other than YHWH, millions of Americans would be up in arms.)
The use of the phrase also takes an affirmative theological stance about the relationship of God and the state/nation. It Pledge does not just presuppose that a god exists, but declares that we are “under” it. That’s a contestable theological viewpoint: for example, one might believe that America is a font of sin actively opposed to God. Or one might believe that God is evil and deserves to be opposed. But the Pledge actively rejects those views and declares that the U.S. is “under” God.
If you reject the view that “under God” refers to YHWH exclusively, but instead refers to every monotheistic Supreme Being, the Pledge is improperly taking another theological point of view: namely, that YHWH, Allah, Krishna, the Deist God, etc. are all basically equivalent.
March 12, 2010, 5:33 pmJohn Herbison says:
Perhaps I am misinformed, but I thought that Allah was simply the Arabic word for the same deity that Jews and Christians worship.
I do wonder, though, if the First Amendment analysis would be similar or different if the phrases, “under no god” or under multiple gods” were substituted.
March 12, 2010, 5:56 pmyankee says:
“Allah” is the Arabic word for “God,” and Arabic-speaking Christians (and Jews, I think) refer to God as “Allah.” Muslims also regard themselves as worshipping the same god as Christians and Jews do, but not all Christians and Jews agree.
March 12, 2010, 6:09 pmzuch says:
Had difficulties in college, eh?
Cheers,
March 12, 2010, 6:11 pmTed says:
As I said, I don’t care if people are religious. I don’t assume to know whether god exists or doesn’t exist. I don’t care, because I don’t find that kind of debate useful in making decisions. But, I also want people to keep their religious fingers outta my business; keep it to themselves. So, I don’t mind voting for a person who has an imaginary friend, I just don’t want him asking that friend what to do when it comes to making policy or decisions that affect my life. Thus, I will vote for a Christian or a Muslim — though I’d rather vote for a Buddhist or agnostic — but not one who uses their religion as a basis for making decisions.
I agree there are alot of overtly Christian congress-critters who seem oblivious to how ridiculous they look when they cite God or Christian values in support for laws affecting U.S. citizens. All things equal, I would not vote for them. In fact, I think they should be removed from public office.
To anticipate your next question, “How do I tell whether they are employing religion in policy decisions?” Well, the same way I tell whether any decision or policy choice is reasonable and should be supported. If the arguments in favor of the decision are more reasonable than those against, I support it. Thus, I would not support a law or policy decision that attempts to cure problem Y with remedy X, when the evidence suggests X will not successfully cure Y. When X is religion, or religious based theories or reasons, the evidence never suggests X will cure Y. Get it?
I have no disagreement with your interpretation, I was being generous with mine. You seem to conclude the phrase should be eliminated. I agree completely.
March 12, 2010, 6:20 pmjrose says:
Although I agree Newdow has no standing to challenge the federal statute that amended the pledge, given that the school district’s policy makes use of that amended language, the purpose of the amended language goes to the heart of whether the policy is religiously neutral.
March 12, 2010, 6:24 pmyankee says:
When picking members of Congress is concerned, I think voting for liars is the only game in town. The only question is what they’re lying about.
I don’t assume loudly religious conservative politicians are sincere either. Conservative politicians have a lot to gain by feigning religiosity, but making a big show of your religion is not necessarily a sign of sincere faith. See Matthew 6:5-6.
March 12, 2010, 6:43 pmChris Travers says:
As it is, it is “under God” With [2 Goddesses!] for all.”
Not quite the same thing as under multiple gods, but pretty close.
March 12, 2010, 7:09 pmChris Travers says:
Silly me. I thought it was clear that the God in “under God” referred to the one figure in our history whose apotheosis has been immortalized in our great temple to Lady Liberty that is our Capitol: General Washington…..
(Sorry, Sarcastro seems to be avoiding this thread.)
March 12, 2010, 7:16 pmArthur Kirkland says:
In addition to Matthew, see John (Ensign), David (Vitter), John (Kennedy), Kevin (Garn), Carrie (Prejean), Ted (Kennedy), Mark (Sanford), James (Swaggart), Ted (Haggard), Jack (Abramoff); Ralph (Reed), Tom (Delay), Newt (Gingrich), James (Watt), Jim (Bakker), Benny (Hinn), Strom (Thurmond) . . .
March 12, 2010, 9:07 pmJaimeInTexas (Jam) says:
As a textualist, where is the delegated authority to the FedGov to implement an oath of allegiance?
March 12, 2010, 9:42 pmVerimius says:
My objection is to the mentality that thinks a public pledge is a necessary thing.
I don’t believe in wearing my patriotism on my sleeve.
March 13, 2010, 1:21 amChris Travers says:
Also note: I doubt this was intentional in the Pledge but the One God to Two Goddesses motif is actually also found as the Second Capitoline Triad, though the choice of goddesses was different.
As a side note, Jupiter is actually a Latin translation of a Greek name meaning “The Father-God.”
So we still have in our Pledge: The Father-God and two goddesses, but instead of Juno and Minerva, we honor Liberty and Justice (Anglicized forms of Libertas and Justitia).
Pretty cool, huh?
I wonder why Christians are so intent on defending our Roman idolatry ;-)
March 13, 2010, 12:36 pmColin says:
The Pledge is bullcrap. I’m very surprised it’s still practiced regularly in schools. It will stop one day.
March 13, 2010, 2:46 pmbadlaw says:
Perhaps this is something only religious people can understand, but theism =/= religion. One can generally believe in God while not being a member of an organized religion. Conversely, it is possible to have a religion without a “God” or some facsimile.
The intent of the Establishment Clause wasn’t to give solace to disgruntled atheists, nor was it to stigmatize the religious sector so that they can’t have a say in social and political affairs. It was really to protect the fundamental rights of religious minorities (I’d even say atheism as a consideration is a bit of a stretch) given our history. Nobody’s rights are curtailed because of “Under God” in the Pledge, unless of course you believe you have a right to freedom from religion. Of course, if you think that, you might need to get your head checked.
March 13, 2010, 7:41 pmKirk Lazarus says:
What about theists? why can’t they understand the distinction? or do you really think that theist == religious?
SCOTUS didn’t seem to agree in TORCASO v. WATKINS.
To assert that the USA is one nation under God is, minimally, to assert the existence of (a) god. (The “under” bit is ambiguous, and could be merely physical, like saying the USA is one nation under the sun.) How this is legal when it is not legal to require an office holder to affirm their belief in (a) god is hard to understand.
March 13, 2010, 11:46 pmporterhouse says:
The intent of the Establishment Clause, like everything in the BoR, is to prevent tyranny! King George III was the head of the Church of England, and this helped him consolidate power and become a tyrant. Churches were an important institution in which people could organize and create power structures. The various churches, and the various state governments, and the various merchants, and the various landowners would spread power around and also put a check on tyranny. I tend to agree with Thomas in Elk Grove that the Establishment Clause is a federalism provision.
The reason we should remove “under god” from the Pledge is because it undermines the Pledge–see Iraq or any number of nations in which religion divides a nation. The Pledge is supposed to unite Americans around common values. In the US we do have a shared value regarding religion–and that is respect for all religious beliefs and protecting religious freedom…not promoting monotheistic religions.
March 14, 2010, 3:04 amDavid Schwartz says:
If that were the rule, the government could evade the establishment clause and do pretty much anything it wanted, simply by doing it in two steps. The first step would be religiously-motivated but have no effect. The second would be secularly-motivated and cause the harm. (See Wallace v. Jaffree)
March 14, 2010, 4:34 pma645657 says:
I have a question.
How can SCOTUS say that “ceremonial deism” falls short of endorsing a substantive religious viewpoint, when it also acknowledges the unconstitutionality of forcing people to affirm deism or making such affirmation a condition of voting or jury duty or holding a government job? Isn’t that trying to have it both ways? What’s the difference, after all, between “under God” and “so help me God”?
March 14, 2010, 8:46 pm