I am pro-choice, but who is “you” in the above sentence? ISTM that the peoples’ elected representatives are the ones who should be “splitting the baby.”
Contrast this with Griswold v. Connecticut, which established a right to use birth control. I agree with Griswold, as a proper example of “unenumerated rights.” The only people involved are the couple engaged in sex.
However, Roe v. Wade includes a third entity, the fetus. Since Consitution doesn’t address how to balance the rights of the mother and the fetus, I think the legislature should make that decision.
BTW Roe v. Wade illustrates the point I made about conservative judges not being the opposite of liberal judges. The opposite of ruling that the Constitution permits abortion would be ruling that the Constitution bans abortion.
There’s no doubt that Scalia would have voted against Roe V. Wade if he had been on the Supreme Court when it came up. It’s likely that he would vote to reverse it today. But, there’s no chance at all that he would find that the Constitution required a prohibition of abortion. Scalia would say that the Constitution was neutral, so states were free to ban it or permit it.
OP: This was the decision that banned the Pledge of Allegiance because of the words, “Under God.”
Just to clarify the details, what the Ninth Circuit ruled against was school-mandated and teacher-led recitation of the version of the Pledge including the phrase “under God”. Schools can mandate recitation of the Pledge in its original form, and of course students can always recite the “under God” version on their own initiative during their free time in school.
They nailed it, IMHO. Wiggle all you like about “ceremonial deism” and “customary practice” and so on, but saying that this is a “nation under God” is stating a religious belief. For the state to mandate the expression of that belief is contrary to the principle of the separation of church and state.
My bet—and IANAL—is that that’s where the Supremes will find their foothold for the overturn. They are probably going to disagree that refusing to recite the pledge constitutes an “unacceptable choice”, and can therefore argue that teacher-led recitation doesn’t really count as “mandating” religious participation.
No, the Supreme Court will merely cite a long string of well-established cases that stand for the principle that “ceremonial deism” (e.g., In God We Trust on money, federal holidays for Christmas, proclamations of thanksgiving, etc.) is not prohibited by the Establishment Clause. Those cases are wrong, IMHO, but the 9th Circuit is insane if they think they will get more than 2 votes on the Supreme Court to affirm.
—They nailed it, IMHO. Wiggle all you like about “ceremonial deism” and “customary practice” and so on, but saying that this is a “nation under God” is stating a religious belief.—
I agree, they nailed it. It isn’t even JUST a religious belief: it is a PARTICULAR theology about the relation of God and the state.
The idea that the state needs to lead children in banal religious expressions should be most abhorrent not just to atheists, but even moreso to theists. Especially when kids are perfectly capable of expressing such sentiments themselves if they please, or if their parents want to direct them.
—No, the Supreme Court will merely cite a long string of well-established cases that stand for the principle that “ceremonial deism” (e.g., In God We Trust on money, federal holidays for Christmas, proclamations of thanksgiving, etc.) is not prohibited by the Establishment Clause.—
Yeah, because all Deists definately saw God as a personal being they could trust, and boy, the founders were definately all for religious tests, tax money for religious instruction, and so forth. (pshaw…)
A distinction that makes sense to me would be preferring one religion over another vs. preferring religion over athiesm. Clearly the former is a problem. So, a city cannot have a creche display, for example.
The latter seems to be OK. It seems to fit in with the “ceremonial deism” idea. So, the word “God” itself is not banned. This sort of approach would arguably follow the “establishment” concept. Countries adopt specific state religions, like Greek Orthodox or Anglican. They do not adopt an official state “religion” of mere belief in God.
—(e.g., In God We Trust on money, federal holidays for Christmas, proclamations of thanksgiving, etc.) is not prohibited by the Establishment Clause.—
None of these, however, involve government authorities in a mandatory environment leading captive citizens in a recitation of this “deism” (cough, cough).
And hey: name me a SINGLE deist who was in favor of “In God We Trust.” It was a bill pushed through entirely by Christians, without any thought or concern for other theistic (who don’t use “God”: some refuse to even utter that word out loud), let alone other religious beliefs (are all religions theistic? Then how can this be anything but a favoring of some religions over others?) We already know that there are some CHRISTIAN religions that find the pledge blasphemous and unutterable! How can THAT not involve favoring some religions over another?
I mean, do people who make these arguments even know what “Deism” is? To wit:
—They do not adopt an official state “religion” of mere belief in God.—
This is having it both ways. Deism is a sort of religion in which pretty all that’s constant is a mere belief in a “God.” If deism is not a religion, then many of the founders were irreligious! You can’t have it both ways, as the ridiculous “ceremonial deism” argument tries to.
No. It is quite clear that it is unconstitutional for the government to favor religion over nonbelief. Multiple Supreme Court opinions make exactly that point. The legal fiction (i.e., big fat lie) about the “ceremonial deism” cases is that there’s really no religious content at all in those cases–just tradition that’s become secularized through long use.
Because of his earlier remarks reflecting prejudice with regard to this specific case.
FREDERICKSBURG, Virginia (AP) – Supreme Court Justice Antonin Scalia complained Sunday that courts have gone overboard in keeping God out of government.
Scalia, speaking at a religious ceremony, said the constitutional wall between church and state has been misinterpreted both by the Supreme Court and lower courts…
The rally-style event drew a lone protester, who silently held a sign promoting the separation of church and state.
“The sign back here which says ‘Get religion out of government,’ can be imposed on the whole country. I have no problem with that philosophy being adopted democratically. If the gentleman holding the sign would persuade all of you of that, then we could eliminate ‘under God’ from the Pledge of Allegiance. That could be democratically done,” said Scalia.
The rest of the crowd repeatedly cheered Scalia, whose son, Paul, is a priest at a nearby Catholic church. The justice, also a Catholic, is a father of nine…
Scalia used the event to repeat criticisms that the Constitution is being liberally interpreted. “It is a Constitution that morphs while you look at it like Plasticman,” he said.
As I see it, the SCOTUS could establish constitutional minimums below which the states could not go in protecting the rights of women or the fetus. Roe recognizes the rights of a woman in the early part of pregnancy, and shifts some rights onto the fetus in the later parts. Given that we are dealing with rights of privacy, life (for both parties), procreation, freedom from govenment interference, etc., I don’t think it is unreasonable for the court to step in and establish some limits at both ends.
But, is Roe written too much like a statute? Probably, yes. It should have been written in more general language with less specificity.
Kimstu: I don’t think the schools can mandate any type of nationalistic display. After all, some folks have religious beliefs against such things, even if the name of any deity doesn’t appear in that display.
My in itial lay opinion would have been that the current SCOTUS is likely to stand on the 1943 JW decision and just say that participation in the Pledge has to be voluntary but the ceremony itself need not be banned. But since the “under God” was legislated into the Pledge AFTER that decision, now we have people who may not object to a Pledge of Allegiance in principle, but on the specifics. I still think they’ll just stick to “as long as it’s voluntary”.
Oh, and as mentioned, “ceremonial deism” really means “traditional practice that through rote repetition has become a habit empty of true devotional meaning”. If the devout among us are willing to have their expressions of faith treated like that, well, who am I to tell them what to do?