# "Pledge of Allegiance" Case Goes Before Supreme Court **URL:** \ **Category:** Great Debates\ **Created:** [October 14, 2003, 2:29pm UTC](https://boards.straightdope.com/t/pledge-of-allegiance-case-goes-before-supreme-court/207375 "2003-10-14T14:29:43Z")\ **Posts on this page:** 20\ **Page:** 5
**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:** [October 15, 2003, 5:41pm UTC](https://boards.straightdope.com/t/pledge-of-allegiance-case-goes-before-supreme-court/207375/81 "2003-10-15T17:41:51Z")
Isabelle: Guess what. I’m religious and I think that not only should the words “Under God” not be in the pledge, the pledge shouldn’t even be recited! ---
**Author:** ![Isabelle](https://avatars.discourse-cdn.com/v4/letter/i/b5a626/32.png) [@Isabelle](https://boards.straightdope.com/u/Isabelle)\ **Post date:** [October 15, 2003, 5:55pm UTC](https://boards.straightdope.com/t/pledge-of-allegiance-case-goes-before-supreme-court/207375/82 "2003-10-15T17:55:24Z")
> [@](#): > > \*Originally posted by Monty \* > \*\*Isabelle: Guess what. I’m religious and I think that not only should the words “Under God” not be in the pledge, the pledge shouldn’t even be recited! \*\* Truthfully I was only stirring the pot with my comments. It doesn’t matter to me one way or the other whether “under God” is in or out. My prayers at night cover my butt. Not saying the pledge. I think a lot of kids are taught the pledge and they recite it because they HAVE to, not because they trully understand what they are pledging to. I shouldn’t have even made the religious comment. I forgot I was in Great Debates and not the Pit. Apologies.:smack: ---
**Author:** ![Ramanujan](https://avatars.discourse-cdn.com/v4/letter/r/51bf81/32.png) [@Ramanujan](https://boards.straightdope.com/u/Ramanujan)\ **Post date:** [October 15, 2003, 6:14pm UTC](https://boards.straightdope.com/t/pledge-of-allegiance-case-goes-before-supreme-court/207375/83 "2003-10-15T18:14:18Z")
> [@](#): > > \*Originally posted by Age Quod Agis \* > Nobody is forcing you or your child to say it. The Pledge has been voluntary for a long time. And thank goodness for that. i’m not sure about anybody else, but when i was a child, i had no idea that i didn’t have to say the pledge. the teacher would say “ok, everyone stand up and let’s say the pledge of allegiance.” and everyone would. if i knew it wasn’t compulsory, i don’t think i would’ve wanted to be that kid who got his ass kicked every day at lunch cuz he hates america, you know? as for those who don’t think this type of religious exclusion is damaging (including those who claim the word “god” in this context is nonreligious), let’s take a look [here](http://www.usatoday.com/news/nation/2002-08-06-pledge-mother_x.htm) . > [@](#): > > The mother of the schoolgirl in the Pledge of Allegiance case says her daughter could face a “lifetime of public scorn” as the "little atheist girl that attacked the pledge. well at least she’s not afraid to admit that she thinks everyone agrees that all atheists are bastards. i get the feeling, like most, that this will be overturned based on tradition and what not. but i regret that i have to admit that. > [@](#): > > _from the marsh v. chambers link_ > “It is obviously correct that no one acquires a vested or protected right in violation of the Constitution by long use, even when that span of time covers our entire national existence and indeed predates it. Yet an unbroken practice . . . is not something to be lightly cast aside.” what sort of reasoning is this? it disturbs me greatly that our justices can simply say “while it is true that i am wrong here, i am right here.” on a different note, what difference does it make what the founders intended? most of them were dead 200 years ago. i think things might’ve changed a bit since then. ---
**Author:** ![athelas](https://avatars.discourse-cdn.com/v4/letter/a/5e9695/32.png) [@athelas](https://boards.straightdope.com/u/athelas)\ **Post date:** [October 15, 2003, 6:25pm UTC](https://boards.straightdope.com/t/pledge-of-allegiance-case-goes-before-supreme-court/207375/84 "2003-10-15T18:25:49Z")
\>when i was a child, i had no idea that i didn’t have to say the \>pledge. the teacher would say “ok, everyone stand up and let’s \>say the pledge of allegiance.” and everyone would. if i knew it \>wasn’t compulsory, i don’t think i would’ve wanted to be that kid \>who got his ass kicked every day at lunch cuz he hates america, \>you know? First, how would anything be different without the teacher telling everyone to get up? People can still get the region surrounding their posterior orifice damaged without it. Second, I don’t think many kids (using myself as a basis) have any qualms about it \*\* unless adults are telling them that they shouldn’t \*\* . I mean, one does not hear passionate debates about the intent of church and state separation in elementary schools, does one? ---
**Author:** ![Age\_Quod\_Agis](https://avatars.discourse-cdn.com/v4/letter/a/d07c76/32.png) [@Age\_Quod\_Agis](https://boards.straightdope.com/u/Age_Quod_Agis)\ **Post date:** [October 15, 2003, 7:27pm UTC](https://boards.straightdope.com/t/pledge-of-allegiance-case-goes-before-supreme-court/207375/85 "2003-10-15T19:27:56Z")
> [@](#): > > _Ramanujan:_ > i’m not sure about anybody else, but when i was a child, i had no idea that i didn’t have to say the pledge. the teacher would say “ok, everyone stand up and let’s say the pledge of allegiance.” and everyone would. if i knew it wasn’t compulsory, i don’t think i would’ve wanted to be that kid who got his ass kicked every day at lunch cuz he hates america, you know? When I was in elementary school, we had a number of students that didn’t say the Pledge. I also had a couple of teachers that didn’t say the Pledge. We never made fun of those students and certainly didn’t beat them up for not saying the Pledge. If anything, some of my classmates were jealous because those kids got to sit quietly and read or draw while the rest of us memorized and recited this speech. > [@](#): > > _Ramanujan:_ > on a different note, what difference does it make what the founders intended? most of them were dead 200 years ago. i think things might’ve changed a bit since then. The idea is that we want the Constitution to mean the same thing regardless of who is interpreting it. This is supposed to help make Constitutional interpretation more consistent both throughout the country and throughout the ages. Americans from all parts of the country should be able to tell what their rights are at any given moment, no matter where or when they live, or which judge is deciding their case. It also limits the power of Courts to either enlarge or diminish the scope of people’s rights and duties. The fear is that in the absence of some foundational, guiding principles, the Courts will effectively become monarchs, who get to read and reform the Constitution any way they want. On the other side of the debate, a number of well-respected constitutional scholars think the Constitution should be a “living document,” which seems to be essentially what you’re advocating. They argue that our interpretation of the Constitution should change to meet the needs and beliefs of our ever-changing society. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [October 15, 2003, 7:44pm UTC](https://boards.straightdope.com/t/pledge-of-allegiance-case-goes-before-supreme-court/207375/86 "2003-10-15T19:44:10Z")
> [@](#): > > _Originally posted by plnnr (in response to me)_ > "Should public schools be forbidden to requires students to read “books with religious themes?” > > Of course not - but including a book with a religious theme in a class and discussing it isn’t the same as endorsing the religion, is it? If I teach a literature course and require the students to read The Book of Job and write a paper on it, am I endorsing the Jewish or Christian religion over any other? Not unless I follow up the assignment with a lecture on how the Jewish and Christian religion is the " right" religion. Allow me to refer you to my previous comments on this subject: > [@](#): > > And I certainly believe there has to be some place where we draw a line that permits the government to acknowledge religion. Should public schools be forbidden to requires students to read books with religious themes? If so, there goes the great bulk of literature. Do we prohibit public officials from speaking about religious subjects, or saying “God bless America”? If that’s the case, we’ve got a whole lot of unconstitutional Establishment going on in this country. > > **I personally would draw the line to prohibit the government from officially endorsing theism over atheism** , which I believe is the intended and actual effect of adding “under God” to the Pledge. But it is not entirely unreasonable to draw a line that permits “under God” and “In God We Trust.” If that’s as bad as it gets, we’ve got it pretty good. ---
**Author:** ![Age\_Quod\_Agis](https://avatars.discourse-cdn.com/v4/letter/a/d07c76/32.png) [@Age\_Quod\_Agis](https://boards.straightdope.com/u/Age_Quod_Agis)\ **Post date:** [October 15, 2003, 7:48pm UTC](https://boards.straightdope.com/t/pledge-of-allegiance-case-goes-before-supreme-court/207375/87 "2003-10-15T19:48:09Z")
> [@](#): > > _RTFirefly:_ > That simply equates to, “the government is free to push belief in God, and you’re free to reject it.” What seems reasonable to me, especially in light of recent interpretation of the Establishment Clause, is that the government shouldn’t be regarded as free to push either belief or unbelief in God. I never said that, and I didn’t mean it. Otherwise, this is a valid point. And I largely agree with your interpretation of EC jurisprudence (although I think the Court is moving away from even that less-than-bright line of demarcation). But my point was just that **Diogenes** was wrong when he said that either he or his children are being _forced_ to recite the Pledge. They may feel pressure to recite the Pledge when others around them are reciting it, but there’s a difference between feeling social pressure and being forced. ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [October 15, 2003, 7:51pm UTC](https://boards.straightdope.com/t/pledge-of-allegiance-case-goes-before-supreme-court/207375/88 "2003-10-15T19:51:06Z")
> [@](#): > > Second, I don’t think many kids (using myself as a basis) have any qualms about it unless adults are telling them that they shouldn’t . I mean, one does not hear passionate debates about the intent of church and state separation in elementary schools, does one? Kids wouldn’t have any problem with Heiling Hitler either if they weren’t told any differently. Kids are stupid. They do what they’re told. ---
**Author:** ![Dinsdale](https://avatars.discourse-cdn.com/v4/letter/d/97f17d/32.png) [@Dinsdale](https://boards.straightdope.com/u/Dinsdale)\ **Post date:** [October 15, 2003, 7:53pm UTC](https://boards.straightdope.com/t/pledge-of-allegiance-case-goes-before-supreme-court/207375/89 "2003-10-15T19:53:47Z")
> [@](#): > > \*Originally posted by athelas \* > \*\* I don’t think many kids (using myself as a basis) have any qualms about it \*\* unless adults are telling them that they shouldn’t \*\* . I mean, one does not hear passionate debates about the intent of church and state separation in elementary schools, does one? \*\* I clearly remember an instance when my son was in cub scouts - under 10 years old - and a mother who was driving them somewhere commented on the spirited debate in the car between my kid and another over the relative merits of evolution vs creationism. Very recently my high school sophomore daughter commented that she dislikes it when classmates inject their religious views into school discussions - as in _I don’t believe in murder, because I’m a christian._ She is very aware of the fact that atheists comprise a tiny minority, and she feels that in many situations it would be to her social disadvantage to proclaim her lack of belief as openly as her fellow students proclaim their beliefs. Oh yeah - she is very aware of, and refuses to say **under God** while saying the pledge. My wife and I have never told our kids that they had to think a certain way about religion or theism. To the contrary, we have exposed them to a wide variety of religions, and explain that just because someone believes differently than them does not make them better or worse. Nevertheless, we have no qualms about explaining our position to our kids. And it doesn’t disappoint us that so far they seem to think nontheism makes sense. ---
**Author:** ![Cliffy](https://avatars.discourse-cdn.com/v4/letter/c/59ef9b/32.png) [@Cliffy](https://boards.straightdope.com/u/Cliffy)\ **Post date:** [October 15, 2003, 8:49pm UTC](https://boards.straightdope.com/t/pledge-of-allegiance-case-goes-before-supreme-court/207375/90 "2003-10-15T20:49:42Z")
> [@](#): > > \*Originally posted by SkipMagic \* > **If the remaining justices of the Court are deadlocked on this and the lower court’s ruling stands, does that mean that only the states covered by the 9th U.S. Circuit Court of Appeals will be held responsible for disallowing a God-tinged pledge?** The ruling will only apply in states embraced by the 9th Circuit unless and until other circuits adopt the decision. –Cliffy ---
**Author:** ![Cliffy](https://avatars.discourse-cdn.com/v4/letter/c/59ef9b/32.png) [@Cliffy](https://boards.straightdope.com/u/Cliffy)\ **Post date:** [October 15, 2003, 9:09pm UTC](https://boards.straightdope.com/t/pledge-of-allegiance-case-goes-before-supreme-court/207375/91 "2003-10-15T21:09:01Z")
Upon reading further in the thread, it looks like **minty** and I disagree on whether a 4-4 deadlock would apply the decision nationwide or not. I think my position makes more analytical sense, but I haven’t been able to find a confirming reference either way, so take that for what it’s worth. I think the petitioner is going to get slammed, 8-0. While I think that Justice Scalia’s comments were somewhat improper, I think that a decision for the petitioner (especially a close one) in this case given his request for Scalia’s recusal (and the justice’s apparent acquiescence) would imply a limit on the freedom of judicial speech which the justices would find untenable. –Cliffy ---
**Author:** ![DaveX](https://avatars.discourse-cdn.com/v4/letter/d/96bed5/32.png) [@DaveX](https://boards.straightdope.com/u/DaveX)\ **Post date:** [October 15, 2003, 9:33pm UTC](https://boards.straightdope.com/t/pledge-of-allegiance-case-goes-before-supreme-court/207375/92 "2003-10-15T21:33:42Z")
I propose a compromise. If the court rules that “under God” is constitutional and should remain as part of the pledge, simply remove the word “indivisible”. Because it no longer applies. Obviously “just these two words” are causing quite a large divide that drives right to the heart of many peoples deepest personal beliefs. ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [October 15, 2003, 10:03pm UTC](https://boards.straightdope.com/t/pledge-of-allegiance-case-goes-before-supreme-court/207375/93 "2003-10-15T22:03:37Z")
Why do we even bother? As a child, I must have recited the Pledge thousands of time, as did we all, followed by a tuneless assault on “The Eyes of Texas Are Upon You.” If it has enhanced my patriotism in any meaningful way, it has escaped my notice. Why? Are we so uncertain, so desperate for reassurance, that we must insist that children place their grubby hands over thier innocent hearts and attest to thier loyalty? Are we afraid they are conspiring to reveal that Dick can look, and Spot can run? And why must they repeat the oath daily? Couldn’t we just make them say it once, and be done with it? Or couldn’t we at least wait until they’re old enough to jerk off before we insist that they swear their fealty? Are other nations this insecure as to their children? Soon enough, we raise the ante, and insist that they learn our National Anthem, possibly the single most un-melodious “song” in history. (Note to self: seek to verify suspicion that the tune was lifted from a forgotten Wagnerian operetta…) We could not have done worse if the anthem was selected for us by a cabal of our sworn enemies and a committee of our victims. But if we must, then leave it be, no need to wrangle over details. If they will swallow the horseshit that the Republic is “indivisible” and that “liberty and justice for all” is the _status quo_, then they may as well believe that God spends His time doting over us, and we are the beloved of the Nations, the focus of universal approval, the Shining Citadel on the Hill. Stack the lies high enough, and they all turn into fibs. ---
**Author:** ![Scott\_Dickerson](https://avatars.discourse-cdn.com/v4/letter/s/f04885/32.png) [@Scott\_Dickerson](https://boards.straightdope.com/u/Scott_Dickerson)\ **Post date:** [October 15, 2003, 10:39pm UTC](https://boards.straightdope.com/t/pledge-of-allegiance-case-goes-before-supreme-court/207375/94 "2003-10-15T22:39:17Z")
Dopers, I knew Isabelle was just being ironic and provocative. I really did. It was obvious. All of which is to say, HEY, I’M REAL SMART. Given which fact, maybe my idea that STATE LEGISLATED LOYALTY OATHS ARE UNCONSTITUTIONAL was an idea worth having. Admittedly, I said that SCOTUS wouldn’t follow my idea. Well, poopoo on THEM. They orta. It’s a good idea and a good way out. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [October 15, 2003, 10:43pm UTC](https://boards.straightdope.com/t/pledge-of-allegiance-case-goes-before-supreme-court/207375/95 "2003-10-15T22:43:59Z")
> [@](#): > > \*Originally posted by Ramanujan \* > \*\*on a different note, what difference does it make what the founders intended? most of them were dead 200 years ago. i think things might’ve changed a bit since then. \*\* I think **A.Q.A** ’s post doesn’t fully address the reasons originalists look to the founder’s intent, so allow me to elaborate. The overarching principle of American governance is that the consent of the governed is required to legitimize the use of government power. The Constitution and its constituent amendments, while featuring many brakes on the machine of democracy, is itself a product of democratic principles – they did not spring fully-formed from the ether, but rather are the product of debate and compromise by duly elected representatives of the people. The Bill of Rights in particular takes several areas of governance “off the table” for purposes of legislation and other government action. But it’s critical to recognize that those areas were taken off the table _precisely because representatives of the people decided they should be beyond the reach of government_. In short, there was actual consent via representation that these items should be considered off-limits. It is for this reason – respect for the right of self-governance – that originalists look to the intent of the framers in interpreting the constitution. Understanding the framer’s intent is critical to understanding the exact contours of what was put beyond the reach of future legislatures. To expand a right beyond what the framers intended is to deny the current generation its own right of self-governance, because no democratic body determined that the right should be so extended. If no prior representative body has taken an area “off the table,” then the current generation can properly legislate in that area. To do otherwise is an unconscionable deprivation of the people’s right to govern themselves. ---
**Author:** ![Cervaise](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/cervaise/32/16693_2.png) [@Cervaise](https://boards.straightdope.com/u/Cervaise)\ **Post date:** [October 16, 2003, 12:08am UTC](https://boards.straightdope.com/t/pledge-of-allegiance-case-goes-before-supreme-court/207375/96 "2003-10-16T00:08:48Z")
> [@](#): > > \*Originally posted by Dewey Cheatem Undhow \* > **It is for this reason – respect for the right of self-governance – that originalists look to the intent of the framers in interpreting the constitution.** 'Kay. Then why do the “originalists” insist on disregarding how many of the framers were atheists or indifferent deists at best? ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [October 16, 2003, 12:36am UTC](https://boards.straightdope.com/t/pledge-of-allegiance-case-goes-before-supreme-court/207375/97 "2003-10-16T00:36:25Z")
Not an entirely fair question, **Cervaise**. “Deist” was just about as far as anyone was willing to go. IIRC, only Tom Paine could accurately be called an “atheist”, given his hostility to organized religion. It should also be noted that religious orthodoxy of the time was largely the creature of the established powers of Europe, what for lack a better term we call the “nobility” (If your tastes run to Marxist terminology, the “ruling class” is just as utile.) Deists of the time were often Freemasons, and vice versa. They were much taken with science and scientific thought, such as it were at the time. It was entirely possible for a gentleman of means to take up scientific research as an amatuer and make major contributions. This led to a somewhat romanticized depiction of God as a sort of Final Engineer, or Cosmic Watchmaker. Thiers was a remote and abstract God. It was not so much that He _judged_ good and evil, but that He _established_ good and evil, as well as the fundamental principles of humanity. Hence the phrase “endowed by their Creator with certain inalienable rights”, and those rights were as immutable and irrefutable as any proven scientific fact. The difference being in the deathless phrase “we hold _these_ truths to be self-evident” (emphasis reverently added) It is entirely true that quotes can be found for each of the Founding Fuckups to support a case that they were religious men in the orthodox fashion of the time, and to some degree our own. As this does not align with my biases, I suggest that they were being circumspect and politic. There is not the slightest possibility that I can conclusively prove this. But that’s my story, and I’m sticking to it. ---
**Author:** ![Age\_Quod\_Agis](https://avatars.discourse-cdn.com/v4/letter/a/d07c76/32.png) [@Age\_Quod\_Agis](https://boards.straightdope.com/u/Age_Quod_Agis)\ **Post date:** [October 16, 2003, 12:45am UTC](https://boards.straightdope.com/t/pledge-of-allegiance-case-goes-before-supreme-court/207375/98 "2003-10-16T00:45:23Z")
Thanks, **Dewey**. Uhh, what he said. ---
**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:** [October 16, 2003, 2:31am UTC](https://boards.straightdope.com/t/pledge-of-allegiance-case-goes-before-supreme-court/207375/99 "2003-10-16T02:31:40Z")
> [@](#): > > \*Originally posted by Isabelle \* > Truthfully I was only stirring the pot with my comments. Truthfully, “stirring the pot” is frowned upon–even in The Pit. > [@](#): > > It doesn’t matter to me one way or the other whether “under God” is in or out. Then why bother to enter this discussion? > [@](#): > > My prayers at night cover my butt. Well, if a belief in deity works for you, then that works for you. What’s got people’s danders up is the forced recognition of a state-sponsored deity. > [@](#): > > Not saying the pledge. I’m going to go with this sentence fragment as being connected with the preceding sentence. So, the pledge is basically useless, isn’t it? > [@](#): > > I think a lot of kids are taught the pledge and they recite it because they HAVE to, not because they trully [sic] understand what they are pledging to. Then it’s definitely useless. Worse than useless, the pledge is a violation of their rights. > [@](#): > > I shouldn’t have even made the religious comment. I forgot I was in Great Debates and not the Pit. Apologies.:smack: Cool. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [October 16, 2003, 2:55am UTC](https://boards.straightdope.com/t/pledge-of-allegiance-case-goes-before-supreme-court/207375/100 "2003-10-16T02:55:11Z")
> [@](#): > > \*Originally posted by minty green \* > **So far as I know, a tie vote in the US Supreme Court means that the legal principles of the lower court are affirmed and apply to the entire country, not just the circuit from which the case came.** > [@](#): > > \*Originally posted by Cliffy \* > **The ruling will only apply in states embraced by the 9th Circuit unless and until other circuits adopt the decision.** **Cliffy** , it’s my understanding that you’re right: an even division of the Court simply affirms the decision below, but does not amount to a statement of the law or binding precedent for other lowers courts. It’s the old distinction between the judgment of a court, and the reasons for judgment. When the Supreme Court divides evenly, the lower court judgment stands, since a majority vote is needed in the Supreme Court to set aside a lower court decision. However, since there is no majority set of reasons, the Supreme Court decision has no precedential value. The issue first arose in _The Antelope_, 23 U.S. (10 Wheat.) 66 (1825). Todd J. was absent for an entire term due to illness. The remaining judges divided 3-3 (the Court at that time had 7 judges, not nine). Marshall C.J. stated (at p. 126): > [@](#): > > It is unnecessary to state the reasons in support of the affirmative or negative answer to it, because the court is divided on it, and, consequently, no principle is settled. The issue came up the next year in _Etting v. Bank of the United States_, 24 U.S. (11 Wheat.) 59 (1826). Todd J. had now died, and the Court again divided evenly. Marshall C.J. read out the decision of the Court, which was to affirm the decision below, and added (at pp. 77-78): > [@](#): > > In the very elaborate arguments which have been made at the bar, several cases have been cited which have been attentively considered. No attempts will be made to analyse them, or to decide on their application to the case before us, because the judges are divided respecting it. _Consequently, the principles of law which have been argued cannot be settled; but the judgment is affirmed_, the court being divided in opinion upon it. [my emphasis] The issue came up again in _Durant v. Essex Company_, 74 U.S. (7 Wall.) 107 (1868). Field J. gave the following statement for the Court on the effect of the even division (at pp. 112, 113): > [@](#): > > If the judges are divided, the reversal cannot be had, for no order can be made. The judgment of the court below, therefore, stands in full force. It is, indeed, the settled practice in such case to enter a judgment of affirmance; but this is only the most convenient mode of expressing the fact that the cause is finally disposed of in conformity with the action of the court below, and that that court can proceed to enforce its judgment. The legal effect would be the same if the appeal, or writ of error, were dismissed. > … > The statement which always accompanies a judgment in such case, that it is rendered by a divided court, is only intended to show that there was a division among the judges upon the questions of law or fact involved, not that there was any disagreement as to the judgment to be entered upon such division. _It serves to explain the absence of any opinion in the cause, and prevents the decision from becoming an authority for other causes of like character._ But the judgment is as conclusive and binding in every respect upon the parties as if rendered upon the concurrence of all the judges upon every question involved in the case. [my emphasis.] Finally, a more recent decision is [Neil v. Biggars, 409 U.S. 188 (1972)](http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=409&page=188). The appellant had applied for direct review of his case by the Supreme Court, on appeal from the state court of appeal. The Supreme Court dismissed the appeal on an even division. The appellant then applied for habeas in the federal courts, and eventually ended up again in the Supreme Court, which granted cert. from the federal Court of Appeals. The respondent state objected to the Court’s jurisdiction, since the federal habeas statute at that time barred review by the Supreme Court, if that Court had “actually adjudicated” the claim in earlier proceedings. Powell J. for the Court held that the earlier dismissal by the evenly-divided Court was not an “actual adjudication” and therefore the Court had jurisdiction to consider the habeas claim under federal law. The usual practice in an even division is for a simple order affirming the lower court, with no reasons going either way, to emphasise that it’s not a binding precedent. (The reason I happen to be familiar with all this is that I wrote an article a few years ago, comparing the precedential value of evenly divided decisions from the SCOTUS, the Supreme Court of Canada, and the House of Lords. Each of the courts takes a different approach to the issue. It’s available on Lexis™. If anyone’s interested, send me an e-mail and I’ll send you the cite.) [Previous page](https://boards.straightdope.com/t/pledge-of-allegiance-case-goes-before-supreme-court/207375.md?page=4) [Next page](https://boards.straightdope.com/t/pledge-of-allegiance-case-goes-before-supreme-court/207375.md?page=6)