First Circuit to Newdow: Pledge w/ "Under God" is Constitutional

[hotflungwok]

Okay. So I read through some of this, and I just don’t get it.

First, he admits that ‘under God’ is religious:

As to the first part of the argument, we begin with the
unremarkable proposition that the phrase “under God” has some
religious content. In our view, mere repetition of the phrase in
secular ceremonies does not by itself deplete the phrase of all
religious content. A belief in God is a religious belief. That 15
the phrase has some religious content is demonstrated by the fact
that those who are religious, as well as those who are not, could
reasonably be offended by the claim that it does not.

Then we get this:

That the phrase “under God” has some religious content,
however, is not determinative of the New Hampshire Act’s
constitutionality. This is in part because the Constitution does
not “require complete separation of church and state.” Lynch, 465
U.S. at 673.

WTF?

It passed the Lemon test because:

Its recitation is a patriotic exercise designed
to foster national unity and pride in those principles." Id. In
reciting the Pledge, students promise fidelity to our flag and our
nation, not to any particular God, faith, or church.

The New Hampshire School Patriot Act’s primary effect is
not the advancement of religion, but the advancement of patriotism
through a pledge to the flag as a symbol of the nation.

So because the purpose of the pledge is secular and not religious, it’s ok to stick religious promotional material in there? This guy’s argument basically says that the ‘under God’ bit isn’t the primary purpose, so it’s ok. If they want to change the pledge to:

I pledge allegiance to the flag of the United States of America, and to the republic for which it stands, one nation under God, indivisible because of God, with liberty and justice which come from God, for all, cuz God loves you.

That would be ok, because the primary purpose of the pledge hasn’t been changed? This pledge doesn’t endore any particular god or anything and keeps the primary purpose intact, so it’s good right? WTF?

From why it passes the endorsement test:

Adopting the view of the objective observer fully aware
of the relevant circumstances, we conclude there has been no
endorsement of religion. The state legislature passed the New
Hampshire Act in the aftermath of September 11, 2001 with the
intent of fostering patriotism, see, e.g., N.H.S. Jour. 945-67
(2002), and that is the statute’s effect. Taken in the context of
the words of the whole Pledge, the phrase “under God” does not
convey a message of endorsement.

This looks like almost the exact same argument: because the context the pledge is said in is not religious, nothing in the pledge is religious, or anything religious in the pledge doesn’t matter.

And then there’s this:

FFRF’s premise is that children who choose not to recite
the Pledge become outsiders based on their beliefs about religion.
That premise is flawed. Under the New Hampshire Act, both the
choice to engage in the recitation of the Pledge and the choice not
to do so are entirely voluntary. The reasons pupils choose not to
participate are not themselves obvious. There are a wide variety
of reasons why students may choose not to recite the Pledge,
including many reasons that do not rest on either religious or
anti-religious belief. These include political disagreement with
reciting the Pledge, a desire to be different, a view of our
country’s history or the significance of the flag that differs from
that contained in the Pledge, and no reason at all. Even students
who agree with the Pledge may choose not to recite the Pledge.
Thus, the Doe children are not religiously differentiated from
their peers merely by virtue of their non-participation in the
Pledge.

So because it’s possible for the reason a kid does not recite the pledge with the ‘under God’ bit to be non-religious, the reason cannot be religious? Huh?

And also

Furthermore, the constitutionality of a state statute
does not turn on the subjective feelings of plaintiffs as to
whether a religious endorsement has occurred. Rather, in the
endorsement analysis, the court assumes the viewpoint of an
“objective observer acquainted with the text, legislative history,
and implementation of the statute.”

Great. You said earlier that ‘under God’ is obviously religious. Right? Wrong.

Adopting the view of the objective observer fully aware
of the relevant circumstances, we conclude there has been no
endorsement of religion. The state legislature passed the New
Hampshire Act in the aftermath of September 11, 2001 with the
intent of fostering patriotism, see, e.g., N.H.S. Jour. 945-67
(2002), and that is the statute’s effect. Taken in the context of
the words of the whole Pledge, the phrase “under God” does not
convey a message of endorsement.

Once again, we get the ‘because the whole thing isn’t religious in every way, it’s not at all religious’ argument.

The Coercion test:

Recitation of the Pledge is not
a formal religious exercise.

Hey that looks familiar.

‘Under God’ is obviously religious, they said so. If you didn’t want to bring religion in it, then that phrase wouldn’t be there at all. The primary purpose of the pledge doesn’t change this, and the context within which the pledge is said does not change this. This makes no sense to me.

Really, why is this argument valid? Yes, the pledge is secular, and yes ‘under God’ is religious. Why does ‘under God’ lose it’s religiosity when it gets stuck in the pledge?

[CurtC]

@Jas09

It’s clear that this area of law is not changing any time soon, so for now I’ll just continue mumbling (or omitting) that particular part of the pledge, knowing that many of my fellow countrymen would consider me less of an American if they knew.

I find it satisfying to openly say “indivisible” right after the words “one nation.”

@Blaster_Master

The reason I don’t see it violating the second part of the Lemon test is because the pledge is a pledge “to the flag… and to the nation for which it stands”, whether the nation is “under God” or not, whatever you decide it means, really doesn’t force anyone to believe or not believe in a creator.

The second prong of the Lemon test is not whether it forces anyone to believe, it’s whether it advances (promotes) religion, as the phrase “under god” clearly does.

[Captain_Amazing]

@hotflungwok

Really, why is this argument valid? Yes, the pledge is secular, and yes ‘under God’ is religious. Why does ‘under God’ lose it’s religiosity when it gets stuck in the pledge?

It doesn’t. It’s still religious, but the law says that it’s ok to benefit a religion so long as the law has a primarily secular purpose. The pledge has a primarily secular purpose, so it’s ok.

[RTFirefly]

@jayjay

Frankly, I don’t know why a nation whose entire reason for being is allegedly freedom makes so much of a fascist-style loyalty oath in the first place…

It all depends on your definition of freedom:

We don’t smoke marijuana in Muskogee;
We don’t take our trips on LSD
We don’t burn our draft cards down on Main Street;
We like livin’ right, and bein’ free.

At any rate, my attitude towards the Pledge is, “I can’t pledge allegiance to some earthly nation’s flag - I’m a Christian.”

Dressing up the Pledge with this “under God” insert doesn’t improve it in that regard - while this nation may be claiming it’s owed my allegiance because it’s under God, I don’t see where God’s saying I should give my allegiance to this flag rather than some other country’s, or to no nation’s flag at all.

[Captain_Amazing]

@CurtC

The second prong of the Lemon test is not whether it forces anyone to believe, it’s whether it advances (promotes) religion, as the phrase “under god” clearly does.

No, the second prong of the Lemon test is whether or not it has the primary effect of either advancing or inhibiting religion.

People are also confusing what this case is about. This case is not about whether including “under God” in the pledge is constitutional or unconstitutional. This case is about whether a law requiring schools in New Hampshire to schedule a period where students may voluntarily recite the pledge is constitutional or unconstutitonal.

[Jack_Batty]

As an atheist, I’m to the point where I just don’t give a shit about “under God” anymore. For all I care they can change it to, “under God and if you don’t believe that you’re going to smoke a turd in Hell.”

Now when they pass a law that tells me I have to recite the pledge, with or without Yahweh involved, then I’ll start to worry.

[villa]

@Captain_Amazing

People are also confusing what this case is about. This case is not about whether including “under God” in the pledge is constitutional or unconstitutional. This case is about whether a law requiring schools in New Hampshire to schedule a period where students may voluntarily recite the pledge is constitutional or unconstutitonal.

Actually I am not.

Law requiring schools to schedule a period where students may voluntarily recite the alphabet - constitutional

Law requiring schools to schedule a period where students may voluntarily recite the Koran, or be required to sit there while others do - unconstitutional

This law - probably unconstitutional. What makes the difference is the content of what is designed to be recited in that period. Similarly a law mandating a time of silence - constitutional. A law mandating a time of silence for prayer - unconstitutional.

[Guinastasia]

@Smitty

The phrase “under God” in the Pledge was specifically inserted to promote religion. When signing the law into effect that added it, President Eisenhower stated, “From this day forward, the millions of our schoolchildren will daily proclaim in every city and town, every village and rural schoolhouse, the dedication of our nation and our people to the Almighty.” My source is http://www.religioustolerance.org/nat_pled1.htm

This is clearly a bad decision by the court.

I thought it was also to show another way in which we differed from those godless commies.

(Seriously though, I thought that’s what inspired it)

[Bricker]

@villa

This law - probably unconstitutional. What makes the difference is the content of what is designed to be recited in that period. Similarly a law mandating a time of silence - constitutional. A law mandating a time of silence for prayer - unconstitutional.

But the courts disagree.

[villa]

@Bricker

But the courts disagree.

With which part? I thought the courts had overturned periods of silence which had specific religious purposes, and allowed others to stand. If I am misremembering here, I apologize.

[Bricker]

@hotflungwok

First, he admits that ‘under God’ is religious:

Who is “he?”

This is a circuit court opinion, issued by three judges, and binding precedent in the First Circuit. There’s no “he.”

[Captain_Amazing]

@villa

This law - probably unconstitutional. What makes the difference is the content of what is designed to be recited in that period. Similarly a law mandating a time of silence - constitutional. A law mandating a time of silence for prayer - unconstitutional.

Why “probably unconstitutional?” Both the 9th and 1st Circuits have said that it isn’t. Do you really think the Supreme Court will reverse? I’d say under the current understanding of First Amendment jurisprudence, this is almost certainly constitutional.

[Airman_Doors_USAF]

@BobLibDem

The court blew it. Maybe the Supremes will overturn. Personally, I wish they’d chuck the whole pledge. Making kids parrot something each day just to make the hyper-patriots happy is just silly. If the most important issue in your life is making sure “Under God” stays in the pledge, you’ve got far too easy a life.

Funny you should put it quite that way, because it is equally silly to fight about having it eliminated. The obvious solution is to simply not say it. Have the words “Under God” diminished your life in any way whatsoever? Have they done anything other than provide fodder for arguments on the Internet? Has “In God We Trust” devalued the money in your pocket? Wasting even a single moment of your time arguing about this is evidence that you also have far too easy a life.

The petty things we fight over, I swear…

[ElvisL1ves]

@Bricker

But the courts disagree.

Do you have some way to say to explain how the court is actually right, some set of reasoning you’re holding back from us, for what is doubtlessly good reason?

This is a circuit court opinion, issued by three judges, and binding precedent in the First Circuit. There’s no “he.”

Unless you’re claiming they each took turns typing single letters at the keyboard, the paragraphs being addressed were certainly written by a single person. That was a pretty silly point to make, especially in the absence of any actual argument from you about its correctness.

Captain, perhaps you missed the part in Civics class about how a court ruling can be definitive and still mistaken. It’s the latter part under discussion here, not the former.

[villa]

@Captain_Amazing

Why “probably unconstitutional?” Both the 9th and 1st Circuits have said that it isn’t. Do you really think the Supreme Court will reverse? I’d say under the current understanding of First Amendment jurisprudence, this is almost certainly constitutional.

This is the linguistic problem we always run into with any discussions as to constitutionality. No, SCOTUS won’t reverse. However, both the 1st and 9th have simply got it wrong here. If SCOTUS affirms, SCOTUS will have gotten it wrong.

I have little doubt this law will be upheld. However, in my esteemed legal opinion, I feel it is, like much of this country’s established religious jurisprudence, constitutionally flawed.

Unfortunately, this makes for linguistic problems - for example, when I talk about something as a result of the Slaughterhouse Cases, which I also thought of as being hideously badly decided, I wouldn’t argue that to be unconstitutional in the same fashion, as the precedent is so well established.

Here, though, there is a difference. I think Lemon is wrongly argued. However, even under Lemon, I feel this fails, and I will feel it fails whatever SCOTUS says.

Hope that makes a degree of sense.

To add on, under “the current understanding of First Amendment jurisprudence, this” will almost certainly be found to be constitutional, but under “the current understanding of First Amendment jurisprudence, this is almost certainly” unconstitutional, in that it fails even the flawed, but controlling Lemon test.

[Jack_Batty]

@Airman_Doors_USAF

Have the words “Under God” diminished your life in any way whatsoever? Have they done anything other than provide fodder for arguments on the Internet? Has “In God We Trust” devalued the money in your pocket? Wasting even a single moment of your time arguing about this is evidence that you also have far too easy a life.

The petty things we fight over, I swear…

That’s easy to say when it’s your side that has their way (rhetorically speaking, I don’t know what side is yours). But come the day when the Supreme Court does rule that “In God We Trust” on currency is uncostitutional and we’ll see just how petty a thing it is when the Christians march on Washington.

[Bricker]

@villa

This is the linguistic problem we always run into with any discussions as to constitutionality. No, SCOTUS won’t reverse. However, both the 1st and 9th have simply got it wrong here. If SCOTUS affirms, SCOTUS will have gotten it wrong.

Maybe you could add a little, “To me, this is unconstitutional…” or maybe “This should be considered unconstitutional…” instead of the flat assertion, then. Since not doing that puts you right in the midst of the folks who confidently assert that income tax is unconstitutional.

[hotflungwok]

@Bricker

Who is “he?”

This is a circuit court opinion, issued by three judges, and binding precedent in the First Circuit. There’s no “he.”

You’ve got to be kidding. All that stuff I wrote, and this is what you wanna talk about?

[villa]

@Bricker

Maybe you could add a little, “To me, this is unconstitutional…” or maybe “This should be considered unconstitutional…” instead of the flat assertion, then. Since not doing that puts you right in the midst of the folks who confidently assert that income tax is unconstitutional.

Apologies - I assumed that was a given in this.

However, it isn’t quite as clear cut.

I think this is constitutional for two reasons:

1. Because the true understanding of the First Amendment shows it to be unconstitutional; and

2. Because this law fails the Lemon test.

I also think that the Supreme Court will mistakenly disagree with me on both parts, keeping the Lemon test in place, and finding this passes it.

Were I to be arguing that this law is unconstitutional because it is violative of the First Amendment, and that while it passes under Lemon, Lemon itself is wrong, I would agree I should clarify more. But my argument is that this fails Lemon. Wouldn’t you agree that makes an important difference in how I should describe it?

[Airman_Doors_USAF]

@Jack_Batty

That’s easy to say when it’s your side that has their way (rhetorically speaking, I don’t know what side is yours). But come the day when the Supreme Court does rule that “In God We Trust” on currency is uncostitutional and we’ll see just how petty a thing it is when the Christians march on Washington.

It is “my side”, as it were, but by the same token I don’t find myself gnashing my teeth, wringing my hands or suing people to eliminate abortion, which I oppose. It’s not apathy as much as it is an acknowledgment that it makes no difference to me, just as this should make no difference to you unless it so dramatically affects your standard of living that you simply must make it go away. Does it? Are you so wrapped around the axle about it that it is ruining your life?

God, I hope not.