# First Circuit to Newdow: Pledge w/ "Under God" is Constitutional **URL:** \ **Category:** Great Debates\ **Created:** [November 15, 2010, 5:30pm UTC](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755 "2010-11-15T17:30:17Z")\ **Posts on this page:** 20\ **Page:** 11
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [November 17, 2010, 7:07pm UTC](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755/201 "2010-11-17T19:07:26Z")
> [@Bricker](#): > > That’s certainly what the line of cases under the Establishment Clause have come to conclude, in large measure. But that’s not what “establishment” means. Certainly that’s not what the guys who passed the law meant, and it’s not what a plain reading of the words means right now. Just to be clear, you don’t mean that the guys who passed it meant by establishment “founding,” do you? That it was there intention to stop government only from launching a brand new religion? ---
**Author:** ![Der\_Trihs](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/der_trihs/32/233_2.png) [@Der\_Trihs](https://boards.straightdope.com/u/Der_Trihs)\ **Post date:** [November 17, 2010, 7:07pm UTC](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755/202 "2010-11-17T19:07:35Z")
> [@Bricker](#): > > No, you’re utterly wrong. Period. Saying that over and over again doesn’t make it true you know. Or qualify as much of an argument. And it makes your “this is Great DEBATES” posturing upthread ironically amusing. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 17, 2010, 7:12pm UTC](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755/203 "2010-11-17T19:12:21Z")
> [@Buck\_Godot](#): > > Since a bible/koran is a particularly blatant alteration that would never occur, let me change it to something more likely (but which hopefully you would agree as unconstitutional) such as a napkin containing a suggested grace prayer thanking Jesus for this food. > > So getting back to my question, would the best way to fight this practice to be to attack the general recommendations that put the prayer into the lunch, or the school which started putting out the lunches according to these recommendations. > > If its the former then presumably the student who received such a lunch would have standing to attack the recommendation as unconstitutional. If it’s the latter, couldn’t the school board claim that since purpose of the program was to provide nutritious lunches according to government recommendations, and the napkin in no way interfered with that purpose. There’s a balancing that goes on in each of these decisions. When we envision a napkin where the law mandates a printed prayer thanking Jesus for the food, we might skate by on the “secular purpose” test, or we might not. But we’d more likely have problems with the excessive entanglement test. The best answer I can give you is that it should be obvious, as a common sense sort of result, that “under God” in a non-mandatory pledge phrase is of much lighter dimension than a mandated napkin with a Jesus prayer on it. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [November 17, 2010, 7:15pm UTC](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755/204 "2010-11-17T19:15:42Z")
So are you going to explain _how much_ of a law Congress can make respecting an establishment of religion before the Constitution is violated, or aren’t you? “It should be obvious” and “common sense” are, shall we say, unpersuasive, just like claiming the thing you’re defending so smugly and triumphantly is actually _de minimis_. ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [November 17, 2010, 7:17pm UTC](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755/205 "2010-11-17T19:17:08Z")
The problem with this approach, **Bricker** , is it is going to inevitably favor majoritarian religions. Those making the decisions may not be deliberately favoring the status quo, but by its nature they will see infractions favoring the majoritarian religion as being less noticeable and of a lighter dimension than those favoring minority or no religions. And that is opposed, I’d argue, to the purpose of the First Amendment. Were the federal government to declare Eid ul-Fitr a federal holiday, it would appear to be a policy favoring Islam. Maintaining Christmas as a federal holiday doesn’t carry that same appearance because Christianity is, and has been, the majoritarian religion of the United States. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [November 17, 2010, 7:29pm UTC](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755/206 "2010-11-17T19:29:21Z")
> [@Bricker](#): > > But the “spirit of a democratic society” isn’t violated by the majority of citizens voting for legislators that approve something like this and then asking a court to take it away? > > Not to be rude, but it sure seems like you like the idea of a democratic society only when the voters in it agree with you. Democracy isn’t only about majority rule; it’s also about fundamental autonomy of individuals and the rights of minorities. That’s why we have a bill of rights and fundamental rights in the first place. When I am offering my view of where I think the lines _should_ be drawn, it’s kind of a non sequitur to accuse me of being anti-democratic because I want a court to overrule the legislature. I’m arguing first principles. It should never have gotten to the point where a legislature even considered it acceptable to subject citizens to declarations of loyalty – it’s an authoritarian, anti-democratic act, regardless of whether that legislature is accomplishing it using nominally democratic means. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 17, 2010, 8:28pm UTC](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755/207 "2010-11-17T20:28:26Z")
> [@villa](#): > > The problem with this approach, **Bricker** , is it is going to inevitably favor majoritarian religions. Those making the decisions may not be deliberately favoring the status quo, but by its nature they will see infractions favoring the majoritarian religion as being less noticeable and of a lighter dimension than those favoring minority or no religions. And that is opposed, I’d argue, to the purpose of the First Amendment. > > Were the federal government to declare Eid ul-Fitr a federal holiday, it would appear to be a policy favoring Islam. Maintaining Christmas as a federal holiday doesn’t carry that same appearance because Christianity is, and has been, the majoritarian religion of the United States. Which is the cart and which is the horse? Christmas is legitimately a federal holiday because of the long-standing secular tradition associated with Christmas. Of course, that long-standing secular tradition arose because of a religious celebration. But that’s simply a fact of history, like a cross on a city seal. Yes, the majority religion gets a boost from this, because the majority religion had much more to do with the shaping of history and tradition. But that doesn’t mean it offends the First Amendment. It doesn’t. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 17, 2010, 8:34pm UTC](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755/208 "2010-11-17T20:34:36Z")
> [@acsenray](#): > > Democracy isn’t only about majority rule; it’s also about fundamental autonomy of individuals and the rights of minorities. That’s why we have a bill of rights and fundamental rights in the first place. When I am offering my view of where I think the lines _should_ be drawn, it’s kind of a non sequitur to accuse me of being anti-democratic because I want a court to overrule the legislature. I’m arguing first principles. It should never have gotten to the point where a legislature even considered it acceptable to subject citizens to declarations of loyalty – it’s an authoritarian, anti-democratic act, regardless of whether that legislature is accomplishing it using nominally democratic means. Who gets to make these sorts of calls? I mean, you’ve asserted it’s anti-democratic. I’m saying it’s not. Is there any room for you to say that despite your opinion, you’re wrong? It seems to me that as part of the democratic process, we’ve empowered courts to insulate themselves (at least to some degree) from the passions of the moment, providing that federal judges are lifetime appointees. That arrangement is intended to strike a balance between the tyranny of the majority and the tyranny of the minority. You say it’s failed, but that’s not an objective claim. If we were debating the composition of hydrogen peroxide, no amount of arguing could make it be anything other than H[sub]2[/sub]O[sub]2[/sub]. Here, it seems almost definitional that the courts decide the meaning; that’s the system we have collectively agreed upon. ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [November 17, 2010, 8:45pm UTC](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755/209 "2010-11-17T20:45:09Z")
> [@Bricker](#): > > Which is the cart and which is the horse? Christmas is legitimately a federal holiday because of the long-standing secular tradition associated with Christmas. > > Of course, that long-standing secular tradition arose because of a religious celebration. But that’s simply a fact of history, like a cross on a city seal. > > Yes, the majority religion gets a boost from this, because the majority religion had much more to do with the shaping of history and tradition. But that doesn’t mean it offends the First Amendment. It doesn’t. But you see, even if I accept, _arguendo_, the Xmas & city seal position (which, by the way, I largely do), that is inapplicable to the pledge situation. There is a secular tradition associated with Christmas developed. There isn’t a secular side to the phrase “under God.” The reason you consider it _de minimis_ is because you are a looking at it from a Christian-centric viewpoint. “One notion devoid of God” would never be considered to be _de minimis_. Keeping Christmas as a federal holiday? Yes, because the purpose is a secular one (_arguendo_). Including “under God” in the Pledge? No, because there is no secular purpose to the words being there, _ **regardless** _ of how _de minimis_ you feel the religious aspect is. I’ll take an element of “promotion of religion” as a side effect of a secular-aimed action. I’ll argue on, however, that intentional promotion of religion, however _de minimis_ it may seem to a Christian in a Christian country, is prohibited by the First Amendment. ---
**Author:** ![Buck\_Godot](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/buck_godot/32/6573_2.png) [@Buck\_Godot](https://boards.straightdope.com/u/Buck_Godot)\ **Post date:** [November 17, 2010, 8:53pm UTC](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755/210 "2010-11-17T20:53:11Z")
> [@Bricker](#): > > There’s a balancing that goes on in each of these decisions. > > When we envision a napkin where the law mandates a printed prayer thanking Jesus for the food, we might skate by on the “secular purpose” test, or we might not. But we’d more likely have problems with the excessive entanglement test. > > The best answer I can give you is that it should be obvious, as a common sense sort of result, that “under God” in a non-mandatory pledge phrase is of much lighter dimension than a mandated napkin with a Jesus prayer on it. Sorry to keep harping on this. My purpose in giving this example was to get away from the ceremonial deism issue in “under god”, and instead focus on the practicalities of how to challenge it. It seems that we both agree that the napkin entails too much entanglement of government with religion, and so should My direct question is: if I wanted to have standing to challenge my hypothetical child receiving such a napkin, would I challenge the congressional suggested guidelines (which seems the heart of the problem), or would I be forced to challenge the school lunch program. In the same way, could I challenge the pledge wording directly, while still allowing the school to recite the secular version, or am I forced to challenge the NH policy. Not that I will or should succeed with either case. And if the answers to these scenarios are different why? ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [November 17, 2010, 8:55pm UTC](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755/211 "2010-11-17T20:55:22Z")
> [@Bricker](#): > > Who gets to make these sorts of calls? If I’m stating my opinion, then _I_ do. > [@](#): > > I mean, you’ve asserted it’s anti-democratic. I’m saying it’s not. And that means we disagree. > [@](#): > > You say it’s failed, but that’s not an objective claim. If we were debating the composition of hydrogen peroxide, no amount of arguing could make it be anything other than H[sub]2[/sub]O[sub]2[/sub]. Here, it seems almost definitional that the courts decide the meaning; that’s the system we have collectively agreed upon. Honestly, Bricker, your response seems almost almost surreal. I’m stating a moral principle and you’re evaluating it procedurally. Even lawyers sometimes state their honest opinions about what they think the world should be like rather than making legal arguments. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 17, 2010, 11:41pm UTC](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755/212 "2010-11-17T23:41:43Z")
> [@Buck\_Godot](#): > > Sorry to keep harping on this. Not at all. Excellent questions! > [@](#): > > My purpose in giving this example was to get away from the ceremonial deism issue in “under god”, and instead focus on the practicalities of how to challenge it. It seems that we both agree that the napkin entails too much entanglement of government with religion, and so should > > My direct question is: if I wanted to have standing to challenge my hypothetical child receiving such a napkin, would I challenge the congressional suggested guidelines (which seems the heart of the problem), or would I be forced to challenge the school lunch program. > > In the same way, could I challenge the pledge wording directly, while still allowing the school to recite the secular version, or am I forced to challenge the NH policy. Not that I will or should succeed with either case. > > And if the answers to these scenarios are different why? You would almost certainly be stuck having to challenge the California law implemting the federal guidelines. Just like, in this case, you’d have to challenge the NH law. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 17, 2010, 11:42pm UTC](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755/213 "2010-11-17T23:42:59Z")
> [@acsenray](#): > > Honestly, Bricker, your response seems almost almost surreal. I’m stating a moral principle and you’re evaluating it procedurally. Even lawyers sometimes state their honest opinions about what they think the world should be like rather than making legal arguments. And I’m trying to get you to see that not everyone agrees with your moral principle, and that those disagreeing may be reasonable in their position. ---
**Author:** ![Monty](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/monty/32/47_2.png) [@Monty](https://boards.straightdope.com/u/Monty)\ **Post date:** [November 18, 2010, 12:44am UTC](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755/214 "2010-11-18T00:44:57Z")
Okay. Let’s say you’ve convinced me. The words “Under God” are 100% meaningless. They have no meaning whatsoever. So, let’s remove them from the pledge and see what happens. I mean, none of the religious types who are adamant about the words being meaningless will have conniption fits when they’re removed. Right? Or you can admit the truth that the words aren’t meaningless and that they really are religious in nature and practice. ---
**Author:** ![Der\_Trihs](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/der_trihs/32/233_2.png) [@Der\_Trihs](https://boards.straightdope.com/u/Der_Trihs)\ **Post date:** [November 18, 2010, 12:53am UTC](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755/215 "2010-11-18T00:53:39Z")
> [@Bricker](#): > > And I’m trying to get you to see that not everyone agrees with your moral principle, and that those disagreeing may be reasonable in their position. Except… > [@Monty](#): > > Okay. Let’s say you’ve convinced me. The words “Under God” are 100% meaningless. They have no meaning whatsoever. So, let’s remove them from the pledge and see what happens. I mean, none of the religious types who are adamant about the words being meaningless will have conniption fits when they’re removed. Right? > > Or you can admit the truth that the words aren’t meaningless and that they really are religious in nature and practice. Exactly. The pro-God-in-the-Pledge side’s position is highly inconsistent (as well as flatly denying reality). That’s not a “reasonable position”. ---
**Author:** ![tomndebb](https://avatars.discourse-cdn.com/v4/letter/t/b9e5f3/32.png) [@tomndebb](https://boards.straightdope.com/u/tomndebb)\ **Post date:** [November 18, 2010, 12:55am UTC](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755/216 "2010-11-18T00:55:00Z")
> [@Der\_Trihs](#): > > Saying that over and over again doesn’t make it true you know. Or qualify as much of an argument. And it makes your “this is Great DEBATES” posturing upthread ironically amusing. Whoooosh[sup] **2** [/sup] ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 18, 2010, 2:00am UTC](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755/217 "2010-11-18T02:00:27Z")
> [@Der\_Trihs](#): > > Saying that over and over again doesn’t make it true you know. Or qualify as much of an argument. And it makes your “this is Great DEBATES” posturing upthread ironically amusing. No, you’re utterly wrong. Period. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 18, 2010, 2:03am UTC](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755/218 "2010-11-18T02:03:43Z")
> [@Monty](#): > > Okay. Let’s say you’ve convinced me. The words “Under God” are 100% meaningless. They have no meaning whatsoever. So, let’s remove them from the pledge and see what happens. I mean, none of the religious types who are adamant about the words being meaningless will have conniption fits when they’re removed. Right? > > Or you can admit the truth that the words aren’t meaningless and that they really are religious in nature and practice. Hey, Monty, did you read post #185? Just wondering, because the objection you raise here was answered in that post. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 18, 2010, 2:04am UTC](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755/219 "2010-11-18T02:04:46Z")
> [@Der\_Trihs](#): > > Except… > > Exactly. The pro-God-in-the-Pledge side’s position is highly inconsistent (as well as flatly denying reality). That’s not a “reasonable position”. No, you’re utterly wrong. Period. ---
**Author:** ![Der\_Trihs](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/der_trihs/32/233_2.png) [@Der\_Trihs](https://boards.straightdope.com/u/Der_Trihs)\ **Post date:** [November 18, 2010, 2:08am UTC](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755/220 "2010-11-18T02:08:18Z")
> [@Bricker](#): > > No, you’re utterly wrong. Period. > [@Bricker](#): > > No, you’re utterly wrong. Period. Whatever happened to “This is Great DEBATES”? [Previous page](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755.md?page=10) [Next page](https://boards.straightdope.com/t/first-circuit-to-newdow-pledge-w-under-god-is-constitutional/560755.md?page=12)