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!
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 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.”
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.
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.
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.
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?
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.
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.
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.
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.
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?
Findlaw 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.
