# Will the Supreme Court reverse the Pledge of Allegiance case? **URL:** \ **Category:** Great Debates\ **Created:** [February 28, 2003, 11:01pm UTC](https://boards.straightdope.com/t/will-the-supreme-court-reverse-the-pledge-of-allegiance-case/158258 "2003-02-28T23:01:57Z")\ **Posts on this page:** 20\ **Page:** 3
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [March 1, 2003, 5:58pm UTC](https://boards.straightdope.com/t/will-the-supreme-court-reverse-the-pledge-of-allegiance-case/158258/41 "2003-03-01T17:58:48Z")
There’s also the fact that nobody in this country is a devout “ceremonial deist.” **Zev** may, through being a member of the people who were given the Law, have access to the Lord God Almighty through the Jewish faith, and a hypothetical Muslim through God’s calling of Mohammed to be His Prophet. But **Monty** and I and **Joe Cool** and a large number of others have access to God only through the sacrificial death and resurrection of His Son, and therefore call ourselves after His title. (And, ironically, most of the people who most strongly defend requiring the saying of the Pledge would be among the first to affirm that last sentence as being true of them too.) In short, IMHO the “ceremonial deism” dodge is a way to say “sure, we’ll let you get away with something that does in fact break the First Amendment’s establishment clause, because it’s politically expedient.” And I’d love to see a dissent in this case call that particular spade a garden implement! ---
**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:** [March 1, 2003, 6:11pm UTC](https://boards.straightdope.com/t/will-the-supreme-court-reverse-the-pledge-of-allegiance-case/158258/42 "2003-03-01T18:11:13Z")
Thanks, JRD! ---
**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:** [March 1, 2003, 6:16pm UTC](https://boards.straightdope.com/t/will-the-supreme-court-reverse-the-pledge-of-allegiance-case/158258/43 "2003-03-01T18:16:28Z")
What **apos** and **minty green** and others said. An objective reading of the Constitution makes it clear that _any mandated recitation of an oath by a public institution that involves a religious element_ is verboten, pure and simple. The First Amendment doesn’t say the government is disallowed from “establishment of _a_ religion” — it says “establishment _of religion_,” period. The Supreme Court, however, bowing to political and social pressure, will reverse the decision and reinstate the legality of public schools asking kids to swear to God. It’ll be wrong, but it’s what they’ll do. Note that the Bush Administration’s rhetoric on the question has been about “defend[ing] the ability of our nation’s children to pledge allegiance to the American flag.” (That’s a [direct quote](http://www.cnn.com/2002/LAW/06/27/pledge.allegiance/index.html) from Ashcroft, by the way.) Anyone with more than two brain cells can tell that nothing about this decision prevents anybody from pledging allegiance to the flag. Ashcroft, typically, is cramming God down our throats by wrapping Him in the flag, which strikes me as being profoundly disrespectful to both God and flag. It’s sad that not a single politician will show the backbone to stand up for the 9th Circuit’s decision, which is, again, totally and completely correct from any objective legal perspective. But listen to California governor Gray Davis: “This decision was wrongheaded and it should not be allowed to stand. With troops overseas, this is the wrong decision at the worst possible time.” Stupid, but predictable. ---
**Author:** ![Revtim](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/revtim/32/1042_2.png) [@Revtim](https://boards.straightdope.com/u/Revtim)\ **Post date:** [March 1, 2003, 6:36pm UTC](https://boards.straightdope.com/t/will-the-supreme-court-reverse-the-pledge-of-allegiance-case/158258/44 "2003-03-01T18:36:26Z")
I agree **Cervaise** , this decision will once and for all shatter the myth that the Supreme Court doesn’t put politics ahead of the Constitution. ---
**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:** [March 1, 2003, 6:47pm UTC](https://boards.straightdope.com/t/will-the-supreme-court-reverse-the-pledge-of-allegiance-case/158258/45 "2003-03-01T18:47:39Z")
For the record, I categorically reject the assertion that voting to reverse in this case is a matter of putting politics ahead of the First Amendment. Legally speaking, there is nothing indefensible about the ceremonial deism cases. I believe they are wrong, but they are the law, and have been for a long, long time. ---
**Author:** ![december](https://avatars.discourse-cdn.com/v4/letter/d/838e76/32.png) [@december](https://boards.straightdope.com/u/december)\ **Post date:** [March 1, 2003, 6:52pm UTC](https://boards.straightdope.com/t/will-the-supreme-court-reverse-the-pledge-of-allegiance-case/158258/46 "2003-03-01T18:52:11Z")
> [@](#): > > \*Originally posted by minty green \* > \*\*For the record, I categorically reject the assertion that voting to reverse in this case is a matter of putting politics ahead of the First Amendment. Legally speaking, there is nothing indefensible about the ceremonial deism cases. I believe they are wrong, but they are the law, and have been for a long, long time. \*\* Here’s a question: Given this history, why did the Ninth Circuit Court rule as they did? Does _stare decisis_ only apply to conservatives? 😉 ---
**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:** [March 1, 2003, 7:23pm UTC](https://boards.straightdope.com/t/will-the-supreme-court-reverse-the-pledge-of-allegiance-case/158258/47 "2003-03-01T19:23:26Z")
Since the 9th Circuit had never before ruled on the Pledge of Allegiance, _stare decisis_ has nothing whatsoever to do with this case. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [March 1, 2003, 7:31pm UTC](https://boards.straightdope.com/t/will-the-supreme-court-reverse-the-pledge-of-allegiance-case/158258/48 "2003-03-01T19:31:57Z")
And the 9th Circuit followed the precedent of _Barnette_, if you want to talk _stare decisis_. You cannot compel anyone to do something that’s religiously objectionable to them. ---
**Author:** ![december](https://avatars.discourse-cdn.com/v4/letter/d/838e76/32.png) [@december](https://boards.straightdope.com/u/december)\ **Post date:** [March 1, 2003, 7:40pm UTC](https://boards.straightdope.com/t/will-the-supreme-court-reverse-the-pledge-of-allegiance-case/158258/49 "2003-03-01T19:40:25Z")
> [@](#): > > \*Originally posted by Polycarp \* > \*\*And the 9th Circuit followed the precedent of _Barnette_, if you want to talk _stare decisis_. You cannot compel anyone to do something that’s religiously objectionable to them. \*\* I may be wrong, but I don’t think that was an issue. It’s settled law that one cannot be compelled to recite the P. of A. The question is whether a voluntary P. of A. can include the words, “Under God.” **minty** , I assumed from your earlier post that the SCOTUS had previously ruled to permit the use of “ceremonial deism.” Was my assumption incorrect? Use of the word, “God,” in the Pledge, absent any other religious trappings, would seem to be a clearcut example of ceremonial deism. ---
**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:** [March 1, 2003, 7:42pm UTC](https://boards.straightdope.com/t/will-the-supreme-court-reverse-the-pledge-of-allegiance-case/158258/50 "2003-03-01T19:42:29Z")
Stare decisis applies to legal principles and multiple controversies that arise on the same facts. Stare decisis does not compel a court to apply any particular legal principle to a case when there are competing principles that could be used to determine the outcome of the case. Thus, Poly’s invocation of stare decisis is as inapplicable as december’s. ---
**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:** [March 1, 2003, 7:45pm UTC](https://boards.straightdope.com/t/will-the-supreme-court-reverse-the-pledge-of-allegiance-case/158258/51 "2003-03-01T19:45:50Z")
> [@](#): > > \*Originally posted by december \* > Use of the word, “God,” in the Pledge, absent any other religious trappings, would seem to be a clearcut example of ceremonial deism. Sez you. The Supreme Court has never decided that issue, nor had the 9th Circuit until this case. Hence, no stare decisis. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [March 1, 2003, 8:04pm UTC](https://boards.straightdope.com/t/will-the-supreme-court-reverse-the-pledge-of-allegiance-case/158258/52 "2003-03-01T20:04:42Z")
I’m just picturing **december** , holding his hand over his heart, reciting those ceremonial-deist words “One nation, under Allah, indivisible”, with a tear in his eye over the freedoms he enjoys in this great land. ---
**Author:** ![december](https://avatars.discourse-cdn.com/v4/letter/d/838e76/32.png) [@december](https://boards.straightdope.com/u/december)\ **Post date:** [March 1, 2003, 8:30pm UTC](https://boards.straightdope.com/t/will-the-supreme-court-reverse-the-pledge-of-allegiance-case/158258/53 "2003-03-01T20:30:12Z")
> [@](#): > > \*Originally posted by ElvisL1ves \* > \*\*I’m just picturing **december** , holding his hand over his heart, reciting those ceremonial-deist words “One nation, under Allah, indivisible”, with a tear in his eye over the freedoms he enjoys in this great land. \*\* “Under God” is bad enough for us atheists. But, I’m not worried about reciting “Under Allah.” If radical Islam wins, I won’t be around. Just listen to what the radical Muslims say. We Jews will be first in line. **minty** , a question. I am assuming from your posts that SCOTUS has already upheld the constitutionality of ceremonial deism. Is that correct? If so, the question would seem to be whether the words, “Under God” fall under that category. I do not have in front of me the reasoning used by the Ninth Circuit. After a bit of googling, it is my impression that they did not dispute the Consitutionality of ceremonial deism, but ruled that the words, “Under God,” do not fall in that category. Is that correct? Or, did their decision have some other basis? Justice Brennan and others [consider the phrase “Under God” to be a quintessential example of ceremonial deism](http://www.washingtonpost.com/ac2/wp-dyn?pagename=article&node=&contentId=A52355-2002Jun26¬Found=true). > [@](#): > > Even former justice William Brennan – a fierce high-waller – once wrote “I would suggest that such practices as the designation of ‘In God We Trust’ as our national motto, or the references to God contained in the Pledge of Allegiance to the flag can best be understood . . . as a form a ‘ceremonial deism’ protected from Establishment Clause scrutiny chiefly because they have lost through rote repetition any significant religious content.” ---
**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:** [March 1, 2003, 8:34pm UTC](https://boards.straightdope.com/t/will-the-supreme-court-reverse-the-pledge-of-allegiance-case/158258/54 "2003-03-01T20:34:17Z")
> [@](#): > > \*Originally posted by december \* > **minty** , a question. I am assuming from your posts that SCOTUS has already upheld the constitutionality of ceremonial deism. Is that correct? Perhaps not using quite those two words (I honestly can’t recall), but yes. > [@](#): > > If so, the question would seem to be whether the words, “Under God” fall under that category. Correct. > [@](#): > > Justice Brennan and others consider the phrase “Under God” to be a quintessential example of ceremonial deism. That’s nice. But it’s not established law. Hence, no stare decisis. Really, man, it’s NOT that difficult a concept. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [March 1, 2003, 9:16pm UTC](https://boards.straightdope.com/t/will-the-supreme-court-reverse-the-pledge-of-allegiance-case/158258/55 "2003-03-01T21:16:53Z")
I think **december** needs a couple of vocabulary terms here. What is in a SCOTUS majority decision is the law of the land insofar as it sets precedent for other cases (hence the _stare decisis_ bit) and therefore the train of logic that the justice writing the decision places on paper to reach the “It is so ordered” at the end of the decision becomes precedent. But, justices being people, they may very well throw in asides not directly related to the case at hand, or clarifying their position. (E.g., “One should not assume from this that all circumstances where a public figure makes reference to his faith in God are _ipso facto_ contrary to Constitutional principles” tossed into the middle of a ruling overturning a judge deciding a case on the basis of his own religious beliefs.) These are _dicta_ (singular “dictum”) and do not constitute a part of the ruling, as distinguished from the _opinion_ conveying it. I tried to look up Brennan’s comment, but a quick Google search was fruitless and the _Washington Post_ article didn’t source the quote. But it’d be my firm feeling that it was almost certainly a _dictum_, not an intrinsic part of a ruling. ---
**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:** [March 1, 2003, 9:41pm UTC](https://boards.straightdope.com/t/will-the-supreme-court-reverse-the-pledge-of-allegiance-case/158258/56 "2003-03-01T21:41:19Z")
Yes, Brennan’s comment about “under God” was indeed dictum. It was, as I recall, acknowledged by the 9th Circuit in its opinion, and appropriately discounted as not being binding law. ---
**Author:** ![december](https://avatars.discourse-cdn.com/v4/letter/d/838e76/32.png) [@december](https://boards.straightdope.com/u/december)\ **Post date:** [March 1, 2003, 10:33pm UTC](https://boards.straightdope.com/t/will-the-supreme-court-reverse-the-pledge-of-allegiance-case/158258/57 "2003-03-01T22:33:57Z")
> [@](#): > > \*Originally posted by minty green \* > \*\* But it’s not established law. Hence, no stare decisis. \*\* I think I’m getting there. SCOTUS never specifically ruled that “under God” was in the category of ceremonial deism. ISTM that the case for finding that phrase not to be ceremonial deism is weak, but such a case can be made, so the 9th Circuit was not violating stare decisis. They were just using poor judgment. [Even the ACLU had a tough time arguing that the phrase isn’t ceremonial deism.](http://www.aclunc.org/opinion/020903-pledge.html) In stretching to find an argument, they answered one objection thusly: > [@](#): > > [Objection]_The phrase “under God” has never been religious is or has lost any religious meaning by rote repetition, and it’s a trivial matter._ > [ACLU Answer] Why, then, did _Newdow_ provoke such an angry reaction? Plainly, because many people felt that the court had attacked their religion by restoring the Pledge of Allegiance to its original form. Pretending that the phrase is purely secular is both untrue and devalues religion. Of course, the real reason for the strong reaction to the _Newdow_ decision was because it barred reciting the Pledge of Allegiance at a time when the country is more-or-less at war. Other reasons for the strong reaction were that it changed a 50-year old tradition and that it was done by the Court, rather than the legislature. Incidentally, some people have claimed that this decision permits using the old version of the P of A. That’s not quite correct. It permits Congress to authorize the use of the old version, but they have not done so. Therefore, under current law, this decision would not permit any official Pledge of Allegiance to be used. ---
**Author:** ![mhendo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/mhendo/32/3159_2.png) [@mhendo](https://boards.straightdope.com/u/mhendo)\ **Post date:** [March 1, 2003, 10:40pm UTC](https://boards.straightdope.com/t/will-the-supreme-court-reverse-the-pledge-of-allegiance-case/158258/58 "2003-03-01T22:40:00Z")
\ In general, i have little trouble following legal debates. The issues are often pretty clear, and examining appropriate cases, as well as what others have written about them, usually allows me to grasp what is going on and to make a fairly informed argument. What i would like, however, is a ready-reference to some of the latinisms that crop up so frquently in legal debate. Many, of course, are familiar, but i had never heard the term _stare decisis_ before today. Lawyers (and others) - is there a readily-accessible guide to these terms on the net, or do i need to buy a legal dictionary? \ ---
**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:** [March 1, 2003, 11:38pm UTC](https://boards.straightdope.com/t/will-the-supreme-court-reverse-the-pledge-of-allegiance-case/158258/59 "2003-03-01T23:38:13Z")
Here you go, **mhendo** : [http://dictionary.law.com/](http://dictionary.law.com/) ---
**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:** [March 1, 2003, 11:41pm UTC](https://boards.straightdope.com/t/will-the-supreme-court-reverse-the-pledge-of-allegiance-case/158258/60 "2003-03-01T23:41:53Z")
[Findlaw](http://www.findlaw.com) has a pretty decent basic legal dictionary. Just enter your term in the search box on the front page, then select “Legal Dictionary” in the menu next to the “Search” button. And contrary to december’s dismissal of the ACLU’s position, I find that argument remarkably compelling. When that case came out last fall, religious conservatives all over the country screamed like somebody had outlawed Sunday School and mandated slow dancing. I found their shrieking terribly amusing. 😃 [Previous page](https://boards.straightdope.com/t/will-the-supreme-court-reverse-the-pledge-of-allegiance-case/158258.md?page=2) [Next page](https://boards.straightdope.com/t/will-the-supreme-court-reverse-the-pledge-of-allegiance-case/158258.md?page=4)