In light of today’s federal trial court ruling upholding the 9th Circuit’s earlier ruling favoring Michael Newdow in his efforts to have the phrase “under God” removed from the Pledge of Allegiance (which had been thrown out previously by SCOTUS on the grounds Newdow had no standing), I thought now would be a good time to republish some links from the time of the original 9th Circuit Court ruling, back in June of 2002.
I do this for several reasons: first, so I don’t have to re-argue all the points I made then; and second, to give you a bit of an idea of how the blogosphere looked (and behaved) back before the run-up to the 2004 Presidential elections and beyond. Make sure you check out the comments for some recognizable names.
June 26, 2002: “If you’re going to San-Fran-Cisco….You’re likely either nuts or stoned…”
June 27, 2002: “Pledge Push”
June 14, 2004: “Supreme Court to Newdow:” (good debate in the comments)
My views haven’t changed much; I think rulings such as the 9th Circuit Court’s overreaches in its appeal to the Establishment Clause, and in so doing, trivializes it. I also believe that the ruling itself is linguistically troubling in that it seeks to codify into law the idea that passive exposure to certain language can be deemed coercive even with the inclusion of an opt out clause.
I’m interested in hearing your opinions, though.
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More from Volokh, Ace, Stop the ACLU, and IP; and Michelle Malkin has a roundup of reaction still in its early stages.
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update: Heh
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update 2: My take on the Pledge? Foaming rightwing fundie LUNACY!
Didn’t the US Congress pass a law removing jurisdiction over the Pledge of Allegiance from federal courts?
ah jeez….here we go again…
Did anyone see if Roberts was questioned about who he would rule in this case?
Thank you for the link.
As a militant atheist I am quite pleased
You’re off the hook, Tman. You’ve already done your part in the June 14 discussiong.
He wasn’t questioned on it yet, but I suspect he won’t answer anyway, even if he is. The case will surely come before the Supreme Court.
Also, if I remember correctly, the Senate rushed to the steps en masse to say the Pledge together and show their collective “outrage”.
ah yes…nothing like congress showing their collective outrage…like saying there isn’t any fat left to cut in the budget, oh and by the way we voted for a pay raise this year…
BECAUSE OF THE HYPOCRISY!!!!
If anyone wants the legal skinny as to what happened, here it is:
Originally (5 years ago), the lower courts (federal and state) threw him out on his ass. Then the liberal U.S. 9th Circuit stuck its oar in. The defendants tried to get the appeal dismissed for “lack of standing†(legalese for “you don’t have a dog in this fightâ€Â) because Nedow was divorced and the mom had custody. The 9th Cir. said (1) he has standing, and (2) the Pledge is unconstitutional (more precisely, the state school practice of reciting it in class is unconstitutional). The US Supreme Court reversed the 9th Cir. on the standing issue, and didn’t reach the constitutional issue. Nedow then lined up some non-divorced “John Doe†plaintiffs and sued again. In this latest ruling, the lower (federal) court threw out Nedow personally for lack of standing, but ruled (correctly) that he had to leave the new John Does in – they have standing. The court also said (correctly) that it was bound by the 9th Cir. ruling of unconstitutionality, because the Supreme Court hadn’t reversed that part. (If you want the opinion, the case is No. 05-00017, California Eastern District.)
What’s interesting and revealing here is the 9th Cir.’s earlier ruling that Nedow had standing. They held that even though Nedow was divorced and non-custodial, he still “retained the right to expose his child to his religious views even if such views differed from the mother’s.†Of course, this is BS – what he wants is to prevent his child (and everyone else’s while he’s at it) from being exposed the to traditional religiousity of the mainstream. I think that sums up the real personal and political motives of the opposing sides in these types of cases.
Oh and BTW (because peiople get this wrong), they didn’t (and couldn’t) strike the pledge itself, they held that the school practice of reciting was unconstitutional. Coercive effect in the penumbra of young minds, and all that.
I don’t remember where I’m stealing this from, but someone made a nice point that DeLay’s statement is a great setup: anyone who disagrees is put in the nice position of trying to come up with fat to be cut. Collegiality militates for picking something in your area. Desire to retain your seat militates against.
As someone with a mild case of Christianity, I’m not against removing the pledge completely from schools.
Ask a 8 year old what pledging allegiance means. He or she won’t know. It’s just a poem they say every day over and over.
I think to be considered a US citizen, you must pledge your allegiance to the US, in English. When it comes to the Under {…} part, insert whatever the heck tickles your netherregions.
I re-read the comments from 3 years ago. To modern blog-eyes, our long-ago slang must seem terribly quaint: “<i>vouchsafe</i>” and better yet “<i>my</i>” What were we thinking?
I concur. Tempest in a teapot, stirred by militant atheists who think their right to not believe means everybody must agree with them: morons.
Simple solution: tell little Jimmy (et al) to think for himself. Probability: Unlikely.
Complex solution: SC ruling that the simple passing reference to “God” in the pledge does not constitute State establishment of religion. Find justification for common sense somewhere, but probably not in the precedents set by the Nutty Ninth. Probability: High
Satifying solution: Just shoot Newdow.
Further deponent sayeth not.
SB: heard
any good ones lately?
Sorry, that joke didn’t work – I was referring to the lengthy old-style meta-tags (which still work, ruining the joke): &WTF;/WTF%%heynow##@&;hubba//hubba||YO<>
Amendment I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
Did Congress make a law that people *must* recite the Pledge? Nope. Perhaps the state or local school district has a rule or policy to that effect, but they’re NOT CONGRESS.
The Constitution doesn’t say City Charters, school districts, town councils, or States “…shall make no law…” It specifically says “Congress”, period!
Likewise, the establishment of a pledge approved by Congress is not the establishment of a religion. It just *mentions* God (of whom I am agnostically ambivalent). Personally, I believe most religions are silly nonsense, but I don’t insist that the government promote my beliefs either.
I can deal with someone praying or mentioning God a whole lot more than ghetto types talking about ho’s and bitches. Or corporate types ‘earning’ exorbitant salaries while selling assets and closing plants.
Get a life, religion haters. It does more good than harm.
Oddball thought:
Militant Atheism is pretty much the direct ideological negative of Militant Islam.
Carry on.
SB: groups
it’s how you think.
Mojo – “probability high”? I’m not sure. This “subtle coercion” BS derives from Weisman in 1992. The swing vote then was Kennedy, and he’s still there.
As a very non-militant atheist I’m quite displeased. I agree with Jeff that Roberts won’t touch this if asked about it because it’s pretty much certain to be heard by the SCOTUS. I’ll be unpleasantly amazed if this doesn’t get overturned. How the generic phrase “under God” can be an establishment of religion when the kids aren’t even compelled to stand for or recite the pledge is beyond me. Speaking as a total layman, I personally thought that he had a decent argument about his standing, but this is just silly.
I concur. Tempest in a teapot, stirred by militant atheists who think their right to not believe means everybody must agree with them: morons.
Do you often project wildly unrelated characterizations and arguments on to the ral arguments of your ideological opponents? It must be a confidence-builder, at least.
Turing word: Covered. As in, “mojo’s got the strawman angle covered.”
How the generic phrase “under God†can be an establishment of religion when the kids aren’t even compelled to stand for or recite the pledge is beyond me.
Right, like there is no coercive influence involved for a child to publicly declare rationale and refrain from standing and reciting a prayer with a classroom of thirty other kids, a pack of peers that tend to sniff out, bully and emotionally eviscerate anyone that shows signs of weakness or divergence from the “norm.”
Nope, no compulsion at all …
Congress passed a law “respecting” the establishment of religion when it added “under God” to the Pledge in the ‘50s. The first amendment has been “incorporated,” so this admonition applies to State and local lawmaking bodies.
But all of those Creche displays, Ten Commandments statues, etc. that weren’t placed as a result of an act of Congress, state legislature, or city council are perfectly constitutional. The First Amendment says “Congress shall pass no law..”, not “Judges shall decorate no courthouse…”
I’ve never understood what’s so difficult about this.
:peter
I will respectfully disagree with the learned commentators who have weighed in. Any citation of god (in the singular I might note) is disrepectful and puts in an uncomfortable position anyone who might be 1. atheist 2. pantheist, 3. agnostic. Make it all go away. I have no problem with a pledge to my country from which I have been given the freedom not to be abused because I think god is an imaginary best friend for weak minded indivuals. Back to the legal issues at hand, I think the phrase “respecting religion” is telling.
word “state” as in disappointment at one of my favorite sites
What specific religion is being established by the recitation of the pledge? How is anyone’s right to free exercise restrained?
It seems to me that the Founders intended to prohibit the Congress from designating a particular sect or denomination as the state religion. It is almost a stone cold certainty that they would have thought it wholly unremarkable that a pledge recited by school children in a publically supported school would include a passing reference to the diety. If others want to change the plain meaning of the words the founders authored in the First Amendment, I wish they would do it the old fashioned (and legit) way and propose an amendment instead of using these fucking activist judges to achieve political agendas that get laughed out of the electoral process with extreme prejudice.
Roberts can’t get confirmed fast enough as far as I’m concerned.
I meant compelled by the state, Bill, I’m not saying that there’s absolutely zero societal pressure on these kids. I think that the court should take that kind of peer pressure into consideration, but even if it were extreme I don’t believe it makes the pledge unconstitutional in and of itself. They’d better get used to it anyway because being openly atheist is going to expose them to soft and outright bigotry from a fair number of Christians for the rest of their lives.
Jeff,
I can’t seem to send a Trackback; I posted related items here.
Aw, Bill, if I had time I’d be glad to. But there’s this girl and her dog that keep buggin’ me…
SB: moving
I found your defense of Mr. Newdow (Totally Reasonable Kinda Guy)…, really I did.
Sorry. Trackbacks are always screwy on this site. Don’t know why.
Let’s see. Bill from INDC refers to “coercive influence.†Where is that found in the constitution?
Bill, I don’t find it there. Perhaps you can find it in the emanations or penumbras? No? Perhaps it should be there?
Bill, Baby, I have – in my more that 60 years – found myself in many a spot where the coercive influence of peer pressure was fairly uncomfortable. I remember when I began going to school in Chicago in the early 1950s and taunted by the kids in the playground as a DP. You know what that means, Bill? No, I don’t think you do. You’re not old enough, Bill.
What it means, Bill, is that you are an asshole. You’re an asshole because you believe that peer pressure in unconstitutional, Bill.
And because you believe that reciting the Pledge means anything in the society you created, Bill.
I couldn’t disagree with that more. I’m an atheist and I don’t feel “under God” in the pledge is disrespectful in the least. It doesn’t and never has made me feel uncomfortable. As far as government citations of god in general go, I can’t even think of one off the top my head that I felt that way about. For the most part I’m perfectly comfortable taking the meaning and intent behind the pledge or something like declaring a National Day of Prayer, translating that to my worldview, and appeciating it without taking offense.
I’m still waiting for someone to produce evidence that having “under God” in the Pledge has ruined somebody’s life. On the other hand, I’m also waiting for evidence that having “under God” in the Pledge has in fact saved somebody’s life.
In other words, why does anybody care either way? Doesn’t everyone have better shit to worry about?
Unless, of course, “God” refers the the Jewish God and not the Christian God, in which case this is an incredibly important subject.
MPH, I think that having the “under God” in the Pledge ruined Newdow’s daughter’s life.
Because the entire nation found out what an asshat her dad was.
Whether or not one agrees with BillINDC, that’s exactly what the Supreme Court said in Weisman, and that’s what this judge had to follow. The idea of the “coercive influence” is by no means ridiculous, but I think there’s a question of degree . . .
I would like them to change it to “Gods”, ‘cause I am leaning pretty hard to polytheism these days. Anyplace this fucked up pretty much had to be created by a committee, way I see it.
I stand corrected, Robin.
Well, actually, I’m sitting.
To me this is de minimis and only worth addressing to shut people up.
As for the commenter who said the first amendment only applies to Congress, that used to be true. Since the passage of the 14th amendment the Bill of Rights has been progressively pushed on the states.
Good thing, too, in my estimation. If my rights get violated, it doesn’t really matter which jurisdiction does it.
BillINDC,
Your point about coercion is a good one, except that the Constitution protects us from coercion by the state, not ostracism by our peers.
Whatever the “establishment” of religion meant to the Founders, it certainly did not mean the mere voluntary invocation of God in public life. The appearance of “God” throughout our history books, federal buildings and on our money is not about an establishment or practice of religion, it’s the result of living in a Christian culture. It’s taboo to suggest that this is culturally a Christian nation, but of course, to date, it is.
The Constitution bars the establishment of religion, but it cannot, and never did, bar the establishment of public customs inherent in Christian life–that includes, and always has included, casual references to God, and invocation of solemn events with a prayer. Similarly, a secular constitution in Iraq would surely not forbid government bodies and public schools from scheduling prayer breaks–this is inherent in Muslim culture.
It’s clear that the nation as a whole is drifting from its Christian moorings, but that doesn’t render remaining vestiges of Christian cultural heritage unconstitutional–it merely calls for democratic removal of those artifacts through passage of new laws, if deemed appropriate.
Want to put a new mantra on the money? Pass a law. Want to remove “God” from the pledge? Pass the law. Want the ten commandments scraped off the courthouse walls? Pass the law.
Otherwise, to the confident, non-sensitive atheist, such vestigal Christian symbolism will just be historical trivia–as quaint as the pagan origins of the days of the week. Claiming that the insertion of “God” into the Pledge in 1949 retroactively “establishes” a religion by today’s hyper-sensitive standards is a form of unfair goalpost moving that undermines democracy.
As Jeff noted in earlier threads, the situation should be as follows.
The COURTS decide whether or not the pledge is unconstitutional as written, and now two different federal courts have ruled it unconstitutional as written. The SCOTUS punted when the Newdow case came along due to technicalities, but it appears they will sooner or later have to judge the pledge as either constitutional or not.
That being said, I agree with Jeff completely that if the courts say yes, it is unconstitutional but the Congress decides to leave it as is then I’m cool with that. Key issue is that the courts aren’t in the business of changing laws, pledges, whatever. It’s up to the congress to actually change the pledge.
Either way it isn’t a big deal. Now.
What I argued in the other thread is that Muslims in this country will eventually challenge the privileges afforded to Christian and Jewish religions within the context of the laws. Churchbells vs Muslim Calls to prayers….Shariah law vs. Priest confessional privileges…
It’s coming folks, so better get ready. The more I hear from this Roberts fellow, and the more he seems to drive everyone on the far ends (either right or left) nuts, the more I like him. Every answer he gave was BY THE BOOK. Which is specifically what the SCOTUS should be doing.
Just a hypothetical:
The ACLU has frequently gone to bat to make sure that material deemed questionable to the surrounding community was available in school libraries. Let’s just say that the book has sexual references and a large dose of obscenity. Many times, the book in question is on a required reading list. The ACLU has also taken up the case that this is permissible. The first point to glean here is that so long as the “objectionable” material goes against Judeo-Christian morals and standards, it is good and wholesome, and there’s nothing wrong with forced exposure.
The second point? Well, let’s imagine for a moment that the word “goddamn” appears in the text. Now that’s a variant of the phrase “god damned,” which means, quite literally, “damned by god.” In other words, condemned by a deity. Could the book in question, then, be constitutionally banned? It’s obviously forcing a recognition of a supreme being upon the poor children, at least as much as “one nation under God” does so within the context of the Pledge.
Which, of course, leads back to point one. God’s name can be mentioned, so long as it’s limited to obscenity.
If you don’t care whether or not your derisive comments are disrespectful to those who believe, you hardly have any standing to complain about how the mention of God makes you feel.
Forbade to Congress, is certainly practiced by the judiciary.
DP=Dumb Polish, originally Displaced Person (eastern Europeans displaced by the second World War). The Racial Slur Database saves the day!
i am a non practicing atheist (I’ve always wanted to say that). The mention of god or God or Jehovah or Allah or Buddah does not bother me in the least. What bothers me is any type of restraint on speech. Look at the mess we are unraveling due to McCain-Feingold.
The government already supports religion by allowing churches to be non profits, although the “G” businesses are awash in money (God and Government). Is the next step to erase any mention of God from our currency? What about standing on the sidewalk and preaching? You’re using public property to promote religion.
And Bill, your argument about peer pressure, that you couch as coercion, is unrealistic. Kids will always have peer pressure. They encounter that everyday – to be part of something, to indulge in drugs or to have sex, or to bully someone else.
Smarter people than me will decide this. I just hope they have a side dish of common sense with their entree.
“Which, of course, leads back to point one. God’s name can be mentioned, so long as it’s limited to obscenity.”
BoDiddly—This is one of the things that’s always bothered me about calls for no God in the Pledge, no creches on courthouse lawns, no Ten Commandments on school walls, etc. I can intellectually understand the arguments supporting those calls, but I can see no corresponding way the Constitution can be interpreted to ban the display of “Piss Christ” and other such art. In other words, it appears we’d create a situation that only allows the denigration of religion.
Which I wonder, is that Nedow’s objective?
Pretty good, Bokonon, you get five points out of ten. But the letters DP were interpreted by grade school kids in Chicago in the early 1950s in a more scathological way (for that time anyway). Apparently it’s not in the data base.
And, no, I’m not Polish and and the schoolyard bullies didn’t think I was.
I wonder if I can sue the Chicago School District for depriving me of my constitutional rights? I’m sure that calling me names is illegal as well as unconstitutional somewhere in the penumbras and emanations of the right to privacy.
I now begin to wonder what other rights of mine were violated by these little punks.
Bill?
Just a couple of thoughts.
If you HAVE to say a pledge of allegience, then it’s not a pledge. It’s a forced confession. Kind of like Islam’s convert or die statute. I don’t see a problem, in theory, with a pledge of allegiance, but it needs to be voluntary, or we are one step away from the Brown Shirts.
I guess I would think you would WANT to say the pledge, but if you are in fact some sort of despicable, disloyal leech sucking on the hind tit of a society without so much of a simple profession of a commitment TO that self-same society, well then, hey, more power to ya.
I posted on my blog about the ACLU and the Psalm 32 quilt. My view is that the first amendment clearly promotes religion. Not A religion, but religion as a desireable element of a stable and moral society.
I don’t believe in a god. I just don’t say “under God” when I recite it.
Turing word “Square”
Does that stance really make me a square?
This is definately a Free Speech issue now, as the courts in question did not ban “under God”, but even the VOLUNTARY act of reciting the Pledge in a public school – according to what I’ve read, even if noone else says it.
Forget elementary students, HS students know perfectly well what pledging their allegiance means, or they should. You want to argue that they are going to be denied the right to pledge their allegiance in a public school, even if they do it in the bathroom stall, to the United States of America, simply because Michael Newdow got his feelings hurt?
And since a different circuit court (in Virginia) upheld the Pledge, it’s almost certain to go to the Supreme Court.
TW: Followed. I followed the link to the AP article and found that the judge in question is a Carter appointee.
Newdow doesn’t just want “God” out of the schools. He wants it out of the public square. (see his lawsuit against the Presidential Inauguration)
You know, I remember in the fourth grade, not only did we have to recite the pledge, but we had to say the Lord’s Prayer. By the third day of school, one of my arms and one of my legs had shriveled, I went blind in one eye, and I came down with syphillis. I would like to thank Michael Nedow for saving millions from this same fate. Whatta maroon…
Moneyrunner, Robert Prather –
Your point about coercion is a good one, except that the Constitution protects us from coercion by the state, not ostracism by our peers.
Who creates the very specific and directed set of circumstances that constitute an environment of effective coercion? The state instituting a public pledge that establishes religion as precondition for an oath to the state. The entire exercise is a coercion. Now, there is nothing wrong with private citizens expressing themselves religiously in whatever way they see fit, even on school grounds, but the policy of the state cannot instigate a joint oath to God.
This is the area that’s not so black and white – is the pledge “voluntary” when it is taught and instigated to children by the state as a public ritual?
And moneyrunner –
What it means, Bill, is that you are an asshole. You’re an asshole because you believe that peer pressure in unconstitutional, Bill.
You’re an asshole because you are dumb, and a super-duper-asshole because you’re aggressive about it.
Dumb enough not to anticipate and comprehend the distinction between wholly private behavior by indiviuals and behavior that involves an compelled environment by the state. As a somewhat analagous (though not quite, and not in severity, of course) example, if a prison warden locked you – a convicted shoplifter – into a cell with two serial man-rapists and did nothing to stop the predictable result – that would be considered unconstitutional practical cruel and unusual punishment by the state.
That’s right, my simplistic friend: even though it wasn’t the warden slipping you his pecker.
I’m not a fan of much written by either Bellamy, and Francis was a piece of work. I can’t imagine too much of Jeff’s readership wanting to live in the kind of America that guy wanted. So the pledge I could take or leave.
That said, are we living in a bad philosophy-class reductio nowadays, or what?
(Shrug) This is one place where I care infinitely more about the political usefulness of a particular issue than I do about the issue itself. ‘Under God’ isn’t going anywhere; if the Supremes actually decide to rule against it in a manner which would actually cause it to be excised from the Pledge, Congress will immediately (and bipartisanly*) set the amendment process in motion – and said amendment will be swiftly ratified by the states. And that ends the issue, more or less permanently.
If anybody really wants to get in front of that steamroller, go right ahead. Just do us the courtesy of not looking quite so surprised when it rolls over you…
Moe
*Which will hurt 45% of them with elements of their base, but not as much as losing the next election would.
Any citation of god (in the singular I might note) is disrepectful and puts in an uncomfortable position anyone who might be 1. atheist 2. pantheist, 3. agnostic. Make it all go away
I disagree.
Your child (or anyone else) is not forced to say “Under God”. I’m not concerned whether he’s uncomfortable, either. Even if your kid gets his ass beat after school (by another child) for not saying “Under God”, he can still refuse to say it.
The only law being broken in the above scenario is assault, and local laws have jurisdiction there.
There’s nothing in the constitution separating church and state, and there’s nothing in the constitution saying one must never be put in an uncomfortable position, either.
tw: began. I can’t think of anything witty, but I’ll take suggestions.
TV (Harry)
Here’s the problem I have with that. If Newdow didn’t have standing, then shouldn’t the Ninth’s ruling in his favor be invalidated? How can a decision reached in favor of a petitioner who should never have brought the case, be valid?
Yes, Newdow brought in other people in the new case. But the district judge is using as precedent a ruling reached in the prior case.
This doesn’t make sense to me. Because I’m not a lawyer.
Even though I have been called an ass on many occasions. Apparently being an ass is a necessary but not sufficient quality for lawyerness.
This can only be true if you believe that the use of the word religion in the first amendment is not an acknowledgment by the state that there is a higher power. Why would the founders grant you the right to something that they later would want the people to deny? In my opinion, I believe that the establishment clause would require specificity to be met. That is, raising one above others. The mere mention of the divine in the pledge does not meet that requirement.
The point can be taken even further to assume that the use of public money that has the word G-d on it is equivelant to the state forcing you to acknowledge the divine in your daily life. You must know that this argument is coming next.
GAAAAGH! DISCRETE STRUCTURES FLASHBACK!
Do you often project wildly unrelated characterizations and arguments on to the ral arguments of your ideological opponents? It must be a confidence-builder, at least.
What is it with militant atheists that they are so damned sensitive? People aren’t incorrect. They are LIARS! People haven’t misunderstood they’re arguments. They CAST ASPERSIONS! Turns of phrases, little sophistic traps, righteous indignation at being “misrepresented.” Everyone is a fecking ideological opponent and every discussion demands that one understand the various logical fallacies they learned in college.
I know I’ll be roundly criticized by the militant atheists, particularly the highly self-satisfied and arrogant one I cited above. He’ll say something like, “forgive me for seeking clarity.” “Forgive me for being intelligent and for understand logic, reason, etc.†As if someone who doesn’t follow their college sophomore like insistence on maintaining the classic style of argumentation and stoic “detachment” is an idiot. A simpleton. A mere child. As if someone who disagrees with them is not just of a different mind, but an idiot; wholly unworthy of engaging in debate. It borders on neurosis. It is a sense of self-importance and an idea of self as arbiter of who people willcomm7unicate, think and reason that is so grating and annoying and quite frankly, fucking obnoxious and juvenile. Get over yourselves!
Don’t bother citing instances where someone has “LIED! LIED, I TELL YOU!” I’ve heard it before. Spare me.
“Get over yourselves!”
Tell you what. How about when When these people do. Sound fair?