I understand perfectly about “ceremonial deism” and I think the justice who came up with that one should receive the “Judicial Pulling Things Out of Your Ass Award.” It’s a mighty slender reed to cling to when you’re arguing logically with people who don’t share your beliefs, but it’s the only one you have, really.
I completely agree, Evil Captor, and I suspect that Justice Brennan, who was the author of the dictum that first coined it, would agree with you. Anyone familiar enough with what he said and wrote in retirement to address that suspicion?
Dinsdale, I concur. Cervaise, I failed to comment because I agreed with it, but that was a masterful brief statement, and you deserve more praise than you got for it.
Turning to Dinsdale’s other comment, I think there is a very significant difference here, which I tried and failed to convey to December on the confirmation-of-Estrada thread.
Quite simply, it’s quite possible to say that you feel that rulings with the force of law that have been in place for years should stand unless they flagrantly conflict with your reading of the Constitution, as Justice O’Connor appears to believe. You can say that you found your jurisprudence on a literal reading of the text, on the intent of the writers, on a broad reading of the concepts that the literal phrasings appear to refer to (Is formally reciting the Pledge because it’s compulsory in your school while holding your right arm in a Nazi salute a statement equivalent to speech of your beliefs about being forced to recite the Pledge? Why or why not?). You can say that a judge should attempt to rule equitably based on his reading of the Constitution, regardless of what the legislature found to justify their acts, or should give great deference to the legislature’s finding of Constitutional justification for their passage of the law.
And none of these prejudges any case, although they may give strong indications of how you might rule in a given case. What is improper in questioning a candidate for the bench or in a sitting justice’s public remarks would be directly addressing an issue that is likely to come before the court.
Much as I despise Justice Scalia’s judicial activism, discussion of church and state in abstract terms was not a prejudgment of how he might rule in a particular SOCAS-based case. Sitting judges, and Supreme Court Justices in particular, owe the legal community guidance in how they read prominent issues when their comments can be so structured as not to prejudge cases. And Justice Scalia appears to me to have stayed carefully within the lines, though he approached them fairly closely.
December, assuming that you’re saving up on the rest of your next reply, let’s look at something Ashcroft said in response to the 9th’s ruling:
http://www.cnn.com/2003/LAW/03/03/pledge.of.allegiance.reut/index.html
“The Justice Department will spare no effort to preserve the rights of all our citizens to pledge allegiance to the American flag,” Ashcroft said. “We will defend the ability of Americans to declare their patriotism through the time-honored tradition of voluntarily reciting the pledge.”
[poison-questions-hat-on]Wouldn’t you agree that Ashcroft, who cannot possibly be unaware of the real ruling of the case, is purposefully trying to mislead people into thinking that this ruling prevents them from “voluntarily reciting the pledge”? And that this issue changes anything about the rights of citizens to pledge to the flag? Is it okay to so cynically mislead the public on an issue like this?[/posion-off]
I have often, on these boards, defended Mr. Ashcroft.
But I agree with Apos that we should expect, from our Attorney General, a more clear statement of the case he opposes. He has every right to oppose the Ninth Circuit’s decision, and to appeal the case to the Supreme Court, but he ought to describe the prospective effects of the ruling correctly and completely.
- Rick
… I had a question when I read the article about Ashcroft’s statements. How does the U.S. Justice Department have “standing” to appeal the 9th Circuit ruling? Can somebody help me to understand how they can appeal a ruling that, afaik, they were not at all involved in at the lower levels? I’m sure there’s an obvious explanation, but federal law is not my strong suit.
Thanks, in advance.
Just off the top of my head, it’s because the President and Congress are defendants in the case. And the federal defendants were involved in the lower levels. (From the panel decision)
From CNN
This article answers the question raised by several posters. The 9th circus court ruling bans the Pledge, rather than replacing it with the prior version.
First, December, for all your fulminations about “judges making law,” you should realize what exactly the #@#%$ it is that judges do in cases involving judicial review – they estop the execution of a law when it is, in their considered view, operating in a manner contrary to the U.S. Constitution. It remains “a law” in a very minimalistic sense, as does a law superseded by another law passed by a later sitting of the legislature – it is present on the statute books but of no practical effect, like the Constitutional prohibition on an amendment restricting the importation of slaves before the year 1808.
Second, with a link to the actual decision, you’re basing your statements on a CNN reporter’s summary. I took the time and trouble to read the actual opinion. In it the 9th Circuit majority bases its decision on Lee v Weisman, 505 US 577. The majority opinion there is amazingly brief and exceptionally clear, and so I quote it in full:
I have bolded and underscored the two sentences above which the 9th Circuit made special reference to.
From the 9th Circuit decision:
In the last paragraph of the decision, which I choose not to take the time to transcribe, the court mentions in passing Newdow’s petition to have the 1954 act declared unconstitutional, and declines to rule on it.
In short, the 9th Circuit did not declare the Pledge unconstitutional; it held that requiring a teacher-led recital of the pledge, even with students free to opt out and stand mute, in a public school, was an unconstitutional violation of the Establishment Clause, because it was a governmental act placed coercive force on those students to publicly affirm a particular mandated religious statement. Not the 1954 amendment adding “under God” to the Pledge, but the California school district’s requirement that teachers lead students in the Pledge, was what was an unconstitutional establishment of religion. And the court specifically declined to rule on the 1954 Federal law.
And, as a bottom line, though it may have escaped you, in a free country such as America has been for the last 225+ years, there is a large distinction between a mandatory practice and a voluntary practice. Every schoolchild in America can choose tomorrow morning to recite the Pledge, as my grandkids proudly did (BTW, they learned it from their father, an ex-Marine, not in school). The school may not compel them to recite it.
I realize the idea that freedoms of this sort are precious and important to protect is a concept foreign to some points of view. But it is one which my great-great-great-great-grandfather went to war to secure from George III, and it’s one I’ll gladly fight for today – much more gladly than to insure that some tinpot dictator does not use WMDs somewhere, or sell them to fanatics.
In short, december, you and CNN are guilty of falsely reporting what you have not read.
Freudian slip? But, yeah, what Poly said. (and which I’m actually a lot more ok with as a ruling than the original). I do predict, though, that the ruling is going to be stayed by either the 9th circuit or the Supremes till the Supremes have a chance to rule on it.
December, let’s try one more time.
Isn’t the statement: “A ruling by a U.S. appeals court could force millions of students to stop reciting the Pledge of Allegiance within days…” simply untrue?
No student is being forced to do or stop doing anything: making these sorts of statements cynically prejeduced misrepresentations. The only people whose behavior is being restricted by this decision are teachers/government officials. How can reducing the power of the government to ASK you to do something reduce the freedoms of any citizen to do whatever they please?
Apos and I went through this point already. You and Apos are technically correct. But, it’s a quibble. What the CNN wording showed is that the phrase “banning the Pledge” is widely used as shorthand for “banning school officials from leading students in reciting the Pledge.” As I wrote earler, this usage makes sense, because the way the Pledge is used in schools is in group recitations led by school officials. So, it’s insignificant that students are still permitted to recite it voluntarily.
Apos had earlier suggested that voluntary prayer in school is a parallel. I don’t agree. I would assume that many religious students do pray voluntarily in school. As the joke goes, *as long as their are exams, there will be prayer in the schools. *
But, in practice, there is virtually no voluntary recitation of the Pledge of Allegiance in schools. Rreciting the Pledge is always a group activity, while prayer is done as a group or by an individual.
By analogy to that train of thought, the following two ideas are true:
-
I live in a Southern state. Once the evil institution of slavery was prevalent here, but the Thirteenth Amendment abolished it. It therefore becomes evident that, because I am prohibited from forcing a black man to do work for me, I am therefore barred from hiring him in a mutual, voluntary contract to do work for which I’m willing to pay him (supposing I had the money and he wished to work for me).
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The rules of this board prohibit me from saying in Great Debates what I think of a supple mind who insists on subverting every argument into a way to deprive citizens of their freedoms. Therefore, I must be banned from this board.
“The way the Pledge is used in schools” is illegal, as defined by the Supreme Court, IIRC before either of us were born. You may not coerce a person into doing what he takes a moral stance against doing, or as a public official inculcate into small and malleable minds what you believe they ought to do. That is the province of their parents and whomever their parents choose to assist in the moral upbringing of their children.
As an honorary grandfather, I look forward to teaching Amanda, Brandon, and Jordan to love a country that cherishes those freedoms, and to love a God whose primary call is to love Him with all that we are and to love our neighbors as ourselves. But I’m doing that with the consent of my son and his wife, not because I have the weight of government authorizing me to do so. And if as a public official I attempted to do that to David B or Persephone’s kids, they’d be 100% within their rights to say, “Back off, bucko!”
—But, in practice, there is virtually no voluntary recitation of the Pledge of Allegiance in schools.—
—Reciting the Pledge is always a group activity, while prayer is done as a group or by an individual.—
But this is not because it is banned: it is because kids don’t want to do it and parents, apparently, don’t want to make them: which is their right.
And who said it had to be done in schools, led by teachers? Again: this IS the same argument made for school prayer: if teachers don’t lead school prayers, it’ll never happen AS A GROUP: which is the way they wanted it. But, of course, if people want to gather as a group to pray or recite the pledge, they are free to do so. The only difference is that they can no longer force people who have no interest in doing so to stand around with them.
To be clear, the statement: “My kids aren’t reciting the pledge after this decision” is certainly going to be a true statement for most kids.
But the statement “My kids aren’t reciting the pledge after this decision, and I don’t like that!” is utterly ridiculous. And it’s even more ridiculous to complain about the lack of pledge recitation and then blame the court decision.
—Apos and I went through this point already. You and Apos are technically correct. But, it’s a quibble.—
It’s hardly a quibble when the confusion is being deliberately exploited for deception in order to try to mislead and outrage people! When the Attorney General outright lies about a legal matter, tells people that their kids are being prevented from reciting the pledge, that’s not good. That’s not excusable as “a quibble.”
december: Please hurry your publisher up with that nifty dictionary which only you appear to be using. The one Merriam-Webster issues has this to say about prayer:
I see nothing in there about prayer being individual.
Drat. I blew the 2nd part of the post.
Try #2!
Strike “I see nothing in there about prayer being individual.”
From MW again:
I see nothing in there about the pledge having to be a group activity.
In short, the currently established PoA is a prayer.
I my writing really that unclear? Monty, prayer is often said individually. E.g., some people pray before they go to bed. Some students pray to themselves during an official “moment of silence.” Prayer is also often done as group, e.g., in a church service.
Some types of pledges are typically said individually, but not the Pledge of Allegiance. In my experience and in my reading, when the Pledge of Allegiance is spoken in school, it’s always part of an official group activity.
It’s very clear that you’re making up definitions for words, december. Just because prayer is often said individually does not mean that a group deistic exercise is not a prayer.
—december wrote—
That is merely a tradition. It means nothing. As has been noted numerous times, the ruling does not stop anyone from reciting the PofA. Because once upon a time, it was recited in a group led by the teacher, and now for students to give up on it and consequently for parents to complain since a teacher cannot do the same is ridiculous. In all of this, the alternate constitutionally correct POV is blatantly missing. If parents complain as a result of this ruling, think about the atheist-parent whose daughter, incapable of making any adult decisions especially involving her theistic beliefs, is forced to make a choice in joining the whole class in a teacher-led pledge.
It means that, until this ruling is stayed or overturned and as long as Congress hasn’t enacted a different P of A, students will not be reciting the P of A in school in actual practice. Many citizens consider it important that students recite the P of A in school; for them, this is a bad result.
Monty, I agree with you that just because prayer is often said individually does not mean that a group deistic exercise is not a prayer. That wasn’t my point. My point was that the P of A isn’t recited individually and voluntarily by students. Therefore the fact that the 9th circus court decision allows them to do this will have no practical effect. If the P of A recitation isn’t permitted to be led by teachers and principals, it won’t be recited in school.
If you’re saying that the Pledge is illegal because it is coercive, could you please explain to me how the Pledge is coercive? I’m still under the impression that participation was voluntary. If you’re not saying it’s coercive, could you please tell me when the Supreme Court found it illegal?
All due respect (and Polycarp, your opinions have certainly proven to be worthy of respect), but the statements you list in the second sentence above are both incorrect. The government may coerce a person into doing what he takes a moral stance against doing (the draft, Amish kids going to public schools, integration of schools, etc.), and the government may inculcate into small and malleable minds what they believe they ought to do (requiring kids to attend school, classes on citizenship, Kansas school board on evolution, the ability of teachers to punish students for inappropriate behavior in class, etc.).