Will the Supreme Court reverse the Pledge of Allegiance case?

Great Debates
121

Whose Constitution shall we use? The founders, who wrote the US Constitution evidently believed that it permitted ceremonial deism. We know this, because they used something like ceremonial deism right from the beginning. E.g., in the Declaration of Independence and the calling of official government days of Thanksgiving. The current Supreme Court Constitution (i.e., based on various decisions) has an exception for ceremonial deism. The Apos Constitution (which I would guess is close to the ACLU Constitution) has no ceremonial deism exception.

You already got a slight retraction, which is all this nitpick deserves IMHO. Your use of the word “lying” is unjustified, because most people would understand what was meant.

It’s more like saying “because the government has stopped taxing me to give to the poor, the poor are starving. In theory, voluntary charity could make up the difference, but it isn’t occurring.”

Yes, the Court can strike down the legislation, but that doesn’t return the original form of the Pledge. Only Congress could do that. The Court ruling leaves us with no legal Pledge of Allegiance, at least for the time being. (Or, more precisesly, it would have left us with no legal Pledge of Allegiance, but the Court stayed their own decision.)

Polycarp, the Supreme Court has held that if you reject the Pledge, you are free not to participate in its recitation. I was moved by your heartwarming anecdote of your grandchildren reciting the Pledge, especially since I’m a grandfather, too. However, if they hadn’t been routinely recited the Pledge in school, they wouldn’t have voluntarily recited it with you. If the P of A isn’t taught and used by school authorities, it will be effectively dead IMHO.

122

“It’s not only possible to “imagine some religious group which forbids allegiance to a secular pictorial symbol like a flag”; it’s actually happened and reference to it has been made, quite clearly, in this thread. Google “Gobitis” and “Barnette” if you care to educate yourself on the historical background for what we’re talking about, rather than propounding views about the semantics of words.”
You appear to be missing the point of the whole flag argument. It shows that the government has the right to promote symbols and concepts that offend the religous beliefs of some. So the fact that “ceremonial deism” offends some doesn’t make it unconstituional. Those who are so offended are perfectly free to use the normal democratic channels and try to get Congress to change the law.

And I am not propounding views on anything. I am merely pointing out the fact that the word “God” has well-established meanings that go beyond religion. If you dispute this fact, please provide evidence.

123

—The founders, who wrote the US Constitution evidently believed that it permitted ceremonial deism. We know this, because they used something like ceremonial deism right from the beginning.—

There were, in fact, there were explicit debates on this issue when the Constitution was being drafted, and it was decided that such things would NOT be included. Amazingly, you can actually find out about their views by reading their words, which they wrote down for just this purpose, instead of trying to summon them interpretatively out of other things that happened elsewhere. There is no reference to “God” in the Presidential oath, for instance, and no inclusion of a mention of the role of God or Christ or even Providence in the legal formulation of the document. This was not unintentional: it was by explicit design AGAINST considerable objections. The only place where any potential “ceremonial desim” can be found in the constituion is in the date.

—Your use of the word “lying” is unjustified, because most people would understand what was meant.—

How so? Again and again, people in authority have decried that this ruling prevents people from saying the pledge. It doesn’t. If everyone really “understands what is meant,” then why not speak the truth? Because the lie is more inflamatory. I’m sorry, but I don’t buy that you were unaware of the distinction or of the difference in impact of the two statements.

What is “deserved” is to not have such misrepresentations made. And that’s a lot more than “oh, it doesn’t really matter.”

—It’s more like saying “because the government has stopped taxing me to give to the poor, the poor are starving. In theory, voluntary charity could make up the difference, but it isn’t occurring.”—

No, because people are complaining that something has been taken away from them. In reality, nothing has. They are as capable of saying the pledge now as they ever were. They just aren’t capable of forcing others to do so. To bemoan it “not occuring” is simply ridiculous, because all they can be bemoaning is that OTHER people and OTHER people’s children are not saying the Pledge. But no one has any right to make other people say the pledge.

—Yes, the Court can strike down the legislation, but that doesn’t return the original form of the Pledge. Only Congress could do that. The Court ruling leaves us with no legal Pledge of Allegiance, at least for the time being.—

I don’t get it. The Court struck down legislation that added words to the Pledge, which was created by wholly unrelated legislation that was NOT struck down.

—Polycarp, the Supreme Court has held that if you reject the Pledge, you are free not to participate in its recitation.—

Which is as silly as saying that if you are not a Christian, you are free not to go to any state financed churches.

—The current Supreme Court Constitution (i.e., based on various decisions) has an exception for ceremonial deism. The Apos Constitution (which I would guess is close to the ACLU Constitution) has no ceremonial deism exception.—

So? Why are you repeating this point when it is precisely what is under debate? Would you make this same remark as dismissively about those things that conservative justices think were decided incorrectly and would not hesitate to overturn if they got the chance?

124

Yes, CyberPundit, there are people who disagree even with that, namely, existentialists, atheists…

The philosophical idea of transcendence and supernaturalism is linked to the notion of religion, IMHO.

125

“Yes, CyberPundit, there are people who disagree even with that, namely, existentialists, atheists…”
I was merely trying to give a definition of God not saying such an entitity exists. I meant that some people might disagree with even my loose definition.

126

If any lawyers are still following this thread, please jump in. AFAIK the prior wording of the P of A was invalidated by Congress as the official US P of A when they adopted the current wording. If the Court invalidates the current wording, it would be up to Congress take action, e.g., to re-authorized the prior wording, to choose a new wording, or to let the P of A die.

127

Exactly what purpose is this enforced declaration of loyalty supposed to serve, anyway? I can see a loyalty oath attached to government service, but forcing citizens to swear loyalty repeatedly seems overbearingly coercive. I am an American citizen, not a slave. Under God or not, the whole thing sucks.

128

Well, I don’t think the question is whether or not I would support you. The question is, would your action be unconstutional, and I would answer that it would be, because the Book of Common Prayer is only used in Episcopal Churches and therefore gives a preference to Episcopalianism, which is a violation of Lemon.

I’m arguing that the pledge is an example of, in your words,

As is “In God We Trust” on the money, the daly invocation by the Chaplain before Congress, and the fact that every president since Washington has mentioned God in his inaugeral address. If this idea bothers you, then I’d suggest the right solution is to change the law and culture to get rid of laws that do that, and to change the common use of God in American culture.

129

Kinda reminds me of B’rer Jesus, talking about the Pharisees and how you should pray in private and not make public testimonials to faith. Of course, thats my interpretation of the passage in question, I have had others point it out as evidence the Jesus didn’t like lawyers.

I don’t think children should be called upon to make oaths or pledges of any kind, whether God is mixed up in it or not. Oaths and allegiances should at least wait till puberty. At the very least.

My son went to “charter school” kind of place. They had the usual kiddy production concocted with the apparent purpose of persuading you to confess to crimes. It ended with a rendition of John Lennon’s “Imagine”, which is a pretty decent song, as anthems go. (And, Lord, how I wish they would!) It likely will not surprise you to hear I am in general agreement with the sentiments therein.

Nonetheless, it bugged me a bit. “Imagine theres no Heaven”, etc. strikes me as fishing a bit deep for third graders.

And so does this “pledge allegiance” crap. Leave 'em alone. Kids don’t need to be thinking about this, any more than they need to be thinking about the doctrinal similarities between Libertarianism and Esperanto.

I’m in favor of just leaving the little buggers alone. This is an entirely reasonable position, hence doomed.

When you’re grown, it hardly matters. If somebody wants to hit the God-gong, lend dignity to the proceedings, thats more a matter of dramatics than theology. In oaths, swearings-in, etc. the use of God to lend import to the oath is drama and ritual, not politics or theology. and isn’t worth getting in a twist over.

130

I went to the 9th Circuit’s website and looked up the Newdow decision for June, 2002. (It’s a pdf with a really long url, so I’ve not linked to it in case it goes goofy.)

As far as I can tell from the majority decision, Mr. Newdow was challenging the 1954 statute that amended the pledge. The majority held that the 1954 amendment violated the First Amendment:

To me, that looks like the Court didn’t strike down the original statute enacting the Pledge, only the 1954 amendment, so I would have thought that the original statute is still in force. The decision doesn’t actually give the text of the 1954 statute, so I’m assuming it’s amended the earlier one by adding “under God” rather than repealing the earlier one in its entierty and re-enacting it with the phrase.

Oh, and CyberPundit - if you go to the decision, you will find that the recitation of the Pledge is mandated by California state law and the policy of the local school board, so I’m afraid that your oft-repeated statement, “No one is forced to recite the Pledge” is incorrect.

[Qualfication: I’m not a U.S. lawyer, so my assumptions may be off. If you need official U.S. legal advice on this, please consult an official U.S. lawyer.]

131

Polycarp for Congress!!

132

Except, in a Supreme Court case from the 1940s, “Barnette v West Virginia” (some Jehovah’s Witnesses objected to saying the pledge, claiming it violated their religion to pledge allegiance to any earthly government), the Court ruled that no one can be forced to say the pledge who has any moral objections to it.

133

Ergo, the Ninth Circuit’s decision is completely valid. If the California law so mandates, it’s in violation of the Barnette decision, and therefore unconstitutional on its face.

134

This is how this will unfold: Scalia will not recuse himself, as he should considering that he has demonstrated prejudice with regard to his remarks at that public ceremony last January, the court will use the ceremonial deism excuse to reverse the 9th Circuit, and it will not be the end of the world. What it will do is diminish respect for the SCOTUS even further. Since the Skokie decision I have had the utmost respect for the SCOTUS. However, if Presidents continue to appoint to the court justices who demonstrate a will to decide cases with prejudice and along partisan lines to the detriment of justices with integrity, people will no longer look to the SCOTUS for justice. Just a fact.

135

Well, yes, if the California law (or the school’s policy) mandates that students are required to say the pledge, it is in violation of Barnette and unconstitutional on its face. But it doesn’t. Here’s the appropriate part of the code:

and, in the case, we find that:

So the law isn’t a Barnette violation.

136

What, exactly, is the definition of “ceremonial deism”? My understanding is that it means something along the lines of “well, we’ve said the words so long that they’ve lost their meaning.” So is there some litmus test that will easily distinguish whether or not something is ceremonial deism? Based upon what I understand the definition to be, it seems that the test should be if no one feels that a certain ritual has any religious significance, it can be classified as ceremonial deism.

Obviously in this case, people do ascribe religious content to the words “under God.” It is noticed. It is seen by some as a religious phrase. It seems to me that the very fact that someone - and in this case, a great many someones - finds there to be religious content and intent in the words implies that the phrase cannot fall under the aegis of “ceremonial deism.”

Just my two cents.

137

I agree. The fact that so many people have gotten their panties in a bunch over the 9th Circuit ruling makes it pretty obvious that it has not “lost its meaning”. That argument seems like pure, unadulterated bullshit to me. It’s like they’re saying: “Under God doesn’t mean anything, but we’ll fight to the death to keep it in the pledge”.:confused:

138

Simple test. It’s ‘ceremonial’ when the religous fundamentalists don’t object to having it removed.

139

These predictions about the Supremes ruling based on constitutionality and precedent are precious to read. Isn’t it more likely that Scalia and his handpuppet Thomas will rule based on a conservative fundamentalist political basis, and bring along enough of the saner Justices who just can’t bear to rule against God Almighty Himself? If there’s one thing their previous behavior has shown, it’s an ability to fit reasoning and legal analysis to predetermined conclusions - and this one looks like a slam-dunk for the Judeo-Christian God and against the establishment clause.

140

Thanks for the interesting discussion. Sorry I didn’t turn up earlier. Cervaise, your concise recent statement especially spoke to me.

I find it is so interesting when people who agree with or are not threatened/offended by a certain action justify its continuance by characterizing it as “no big thing.” But, it is apparently a big enough thing that they get quite exercised about its threatened discontinuance.

I guess this is a hijack, or perhaps fodder for another thread, but it always seems to me somewhat inappropriate for sitting justices to publicly proclaim their personal philosophies in a manner that clearly suggests how they will approach disputes that are very likely to arise before them. Of course, accepting a judicial appointment does not require the relinquishment of one’s free speech.

But when I hear a justice like Scalia propound his views on matters such as church and state, in my mind it justifies the Senate’s intense questioning of judicial nominees on similar issues. Yet, the common response by nominees and their supporters is that they refuse to express an opinion on an issue that may be before them.

Final aside, going to DC with the family in early April. The Supremes will be sitting. As a lawyer practicing federal law, watching them in action is like the Super Bowl. You can bet I’ll be waiting in line to see these guys in action. I’ve already checked out the decisions being appealed, and ranked my preferences as to arguments. Needless to say, my kids are not nearly as psyched as I. :wink: Ah, I’ll just leave them in the Air & Space Museum…