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?
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.
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.
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.
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.
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.
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.
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.
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.
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?
If I’m stating my opinion, then I do.
And that means we disagree.
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.
Not at all. Excellent questions!
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.
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.
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.
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”.
Whoooosh[sup]2[/sup]
No, you’re utterly wrong. Period.
Hey, Monty, did you read post #185?
Just wondering, because the objection you raise here was answered in that post.
No, you’re utterly wrong. Period.
Whatever happened to “This is Great DEBATES”?