Will the Supreme Court reverse the Pledge of Allegiance case?

Great Debates
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At one time, there were fine upstanding citizens of my adoptive state who considered it important that their children not go to schools with black children, and for them, Brown v Board of Education was a bad result. Back in history a ways, there were people who considered that letting Jews immigrate here would corrupt our national heritage, and immigration laws that didn’t exclude them were for them a bad result.

And, quite frankly, December, IMHO your stance on this issue seems to me very much akin to theirs – “it’s always been that way, so changing it because the rights of others are being violated is the wrong thing to do.” Sorry, but in my mind this is as close as you’ve ever come to arrant bigotry – the attitude that things have to keep on going as I think they ought to, regardless of the feelings of others. I’m not doing this to flame you, but to express my personal reaction to what you’ve said in a hope that you will clarify your position in a way that does not compel me to see you in that light.

Age, you caught me in a solecism, and I thank you for it. As December said above of himself, I was using “the Pledge” synecdotically for “requiring the Pledge in a public school setting.” No, the Pledge itself is not coercive – the action of the school district which the Circuit Court found to be unconstitutional was. And the courts have held that “we’re all going to do X, but you can bring a note from home that excuses you from doing X” is sufficiently pressuring on a kid to be considered coercive. (I refer you to Justice O’Connor’s concurrence in the Lee decision cited above for a clearcut statement of this.)

While in a couple of cases, your examples are not actual government coercion against a moral stance, let that pass; I’ll concede that many if not most of them are. My only defense is that I was making an abstract and ideal-expressing statement, not an assertion of how things actually are. And our courts are inclined to uphold the principles of my moral-ideal statement on a case-by-case basis, slowly and haltingly. (JFTR, Robert and Virginia Heinlein, both Navy veterans and members of USNR until the days of their deaths, both believed the draft to be against the Thirteenth Amendment’s ban on involuntary servitude, and deplored the idea that a mass army of reluctant draftees rather than a corps of patriotic volunteers was what the armed services had turned into.)

The point you raise is worth much further discussion but would be a hijack of December’s thread – if you want to open a new one to address it, I’ll join you there.

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Whether we’re talking about Constitutional law or American society, tradition hardly “means nothing.” In fact, it’s the tradition of reciting the Pledge in school that has many people up in arms. People have been starting their schooldays with the Pledge for 50 years, and it’s now been declared unconstitutional. Plus, constitutional jurisprudence embraces “ceremonial deism” (which I personally find silly). Thus, tradition means quite a bit. I don’t think it should answer the question, but it certainly means something.

The idea that kids can still voluntarily recite the Pledge is a fallacy. The whole point of the Pledge (traditionally) is that kids and the teacher do it together. It’s supposed to help promote citizenship, public speaking skills, and memorization. (Plus, the kids usually shut up immediately after the Pledge, which makes it easier for the teacher to start class.)

Once teachers stop leading the Pledge, the kids won’t be able to recite the Pledge in class voluntarily any more than they could stand up and recite a song, a poem, or a story about their weekend. Kids aren’t allowed to talk in class, remember?

So what’s the constitutionally correct POV? I hope you’re not going to say it’s the complete absence of religion from government, or else you’re going to have to explain an awful lot of things that have been a part of our government’s traditions since its inception, and why the founders used the phrase “establishment of religion.”

Aside from the fact that such a POV would be constitutionally incorrect, it’s certainly disappointing to the majority of Americans. The other side of the civil rights equation is the will of the majority – and apparently, the majority of Americans want the words “under God” included in the Pledge, and the majority of Californians want their kids reciting the Pledge in school. So the question isn’t whether you find the phrase “under God” personally offensive, or whether you find the daily recitation of the Pledge malicious or ridiculous, it’s whether someone’s Constitutional rights have been violated.

Lest you get too high on that horse called “emotional appeals,” think about the poor Christian Scientist-parent whose daughter, incapable of making any adult decisions especially involving her theistic beliefs, is forced to decide how to answer questions on a test about evolution, or is forced to make the choice between throwing up in class and going to the nurse’s office.

Kids have to make choices reflecting on their (or their parents’) religious choices every day. I don’t think being invited to recite a Pledge which includes the words “under God” is going to break their spirits any more than being invited to participate in a discussion on the benefits of penecillin will break the spirit of the Christian Scientist child.

The libertarian in me doesn’t want the government to be able to start every school day with the Pledge, but I don’t think it’s constitutionally prohibited.

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december, why can’t kids can pledge in school, in actuality, if that is what parents want? What is stopping them, exactly? If citizens consider it important that their kids recite the pledge “in school,” (as opposed to all the other possible places) they can still do so. They just can’t get government officials to lead them in it every day as part of the official school day.

I suspect the unspoken desire here is not to have their kids recite the pledge (because they can if they want, and parents can coerce them into doing so if they want), but to use the authority of the school to put pressure on other people’s kids to recite the pledge. Because that is the only thing that can no longer happen.

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I disagree with the notion that tradition means something. As you very well know, traditions can be (and have been) wrong. Actually, I view this ruling as a way to correct what was done wrongly 50 years ago. I think it is important to remember the circumstances under which the words “under God” were added to the pledge. But, OTOH, if by tradition, you are only talking about reciting the pledge without the words “Under God”, then I am with you. I do not see why that would be unconstitutional. In fact, I believe that the phrase “under God” was what was found to violate the Establishment clause.

I believe that the notion of ceremonial deism is technically unconstitutional. And, of course, it would be impossible to separate religion from government. But, from where I sit, I can see a difference between a federal holiday for Christmas (sufficiently secularized), or the words “In God We Trust” (mostly ignored though I would prefer it be taken off) and a teacher-led recitation of a pledge with the words “One nation under God”. Evidently, your mileage varies!

Bingo! I agree with the last sentence and I believe that it does violate the First Amendment, but not someone’s constitutional rights, but the Government’s “non-right” to infuse God in the pledge.
Oh, the will of the majority is a fallacy when it comes to the Bill of Rights. One of the main reasons for the Amendments were to protect the individual from majority-approved tyranny.

Tough decisions, yes but wrong analogy. I agree it is a difficult job to create the material for school education given the First Amendment. But, we have scientists working in all areas of human interest with the goal of seeking knowledge which ultimately filters into the textbooks. The idea would be to teach the scientific method and the most widely accepted theories in as much an unbiased way as possible. Any child’s religious or atheistic beliefs should have no bearing.

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I don’t mean to speak for december, but I tried to touch on this in my uber-length post above (I don’t blame you if you didn’t wade through it all). Certainly, everyone can still recite the Pledge, but there are two reasons this doesn’t matter.

  1. The value of the Pledge apparently derives from its recitation in school, led by a teacher. How do I know that this traditional form of the Pledge has intrinsic value? Because the California and US legislatures say so, and they’re the voice of the people. Their reasons may be that the recitation of the Pledge in school improves citizenship, or speaking skills, or memorization, or it may just be that they did it when they were kids. But it doesn’t really matter (see below).

  2. Even if the Pledge supporters’ reasons are total B.S., and even if they don’t suffer any harm by not being able to recite the Pledge in its traditional form, it doesn’t matter. The majority of Californians think that reciting the Pledge in school while led by a teacher is important. The will of the majority rules. It’s up to those opposing the Pledge in its traditional form to either change the majority’s minds, or prove that their Constitutional rights have been violated. The mere fact that there is a less burdensome way to do something doesn’t justify overriding the concept of majority rule.

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Actually, in this country, thanks to the Constitution–especially the Bill of Rights–“the will of the majority rules” is not the trump card as to our laws you seem to think it is, Age.

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Yep, “the will of the majority rules” is a gross misunderstanding of our governmental system.

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This comment is not worthy of you Polycarp. I was arguing in favor of reciting the P of A because it builds citizenship. Note that it includes the words, “With liberty and justice for all.” It would be just as silly to argue that opponents of reciting the P of A are racists, because they oppose liberty and justice for all.

Our real dispute ISTM goes back to the old question of whether children are born good or whether morality has to be inculcated. You seem to take the former POV and I take the latter.

Apos, AQA has done a good job of answering your question of why the P of A can’t be recited individually. It may be that it was designed that way. Maybe most cultures’ patriotic expressions are also done jointly. Whatever the reason, the fact is that the P of A is always recited as a group exercise.

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I’m in favor of building good citizens, and when free to do so, I try to teach children about the loving God I believe in, and the need to care about other people and accept them as who they are.

But I stand firm against government deciding what constitutes “a good citizen” and mandating that schoolchildren fit that definition, or deciding what constitutes proper religious doctrine and teaching it.

I truly hope you can see the distinguishing line in those two statements clearly, because it cuts to the heart of what we seem to be disagreeing on.

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We don’t disagree that much. I don’t like the words, “under God.” I would have preferred that they not be added to the P of A. Nevertheless, I think those words will be held to be constitutional, as a matter of law.

I think schools should teach citizenship. I support the school leading the regular recitation of the P of A, however it’s worded.

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Under the ruling, can the teacher lead a recitation of the pledge without the words “under God”?

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—Apos, AQA has done a good job of answering your question of why the P of A can’t be recited individually.—

I don’t see where he did this.

What he said was that, in his opinion, “it doesn’t matter [presumably, to the angry parents of Californian children]” That’s all well and good, and it may or may not matter to them (as far as assuging their anger), but it’s hardly the same thing as whether or not the Pledge can or can’t be recited individually as YOUR re-phrasing puts it.

The fact is, it can be recited individually. And it can be recited in groups: whatever groups, and in whatever organizations, private citizens deem fit. It can be recited in schools, even in groups, during whatever time anyone is free to do anything else outside of class time. It just can’t be led by the teacher as part of the official school day.

Now, maybe people are informed, and are specifically upset because they do want it to be led by the teacher as part of the official school day. But that’s exactly what we are discussing the Constitutionality of in the first place. So AQA ads absolutely nothing to our discussion by simply restating the desire that it be led by a teacher as part of the official school day. Whether that can be done constitutionally or not is what we’ve ALREADY been talking about this whole time.

Our little tangent concerned the range of statements, from cynical exploits of amphiboly (like your recent use of “can’t”) to outright falsehood, being made so as to make the ruling look as if it somehow prevents a private citizen from saying the pledge or assembling with other private citizens to say the pledge in official groups, or even parents forcing their children to gather and pledge “under god” before school. This sort of false appeal to emotion is not just dishonest, it’s frightening in the way it confuses liberty with government coercion.

—Under the ruling, can the teacher lead a recitation of the pledge without the words “under God”?—

Yes, just as they can lead the children in a recitation of anything that doesn’t include religious affirmations. Whether this technically be “THE” pledge is ambiguous, but if all anyone really cares about is a rote exercise of patriotism, they can do that just fine. If I remember the California statute, it doesn’t even necessitate the pledge: it just specifies that the pledge can fulfill the requirement.

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Absolutely correct. And while I don’t think it’s totally fair to compare the “separate but equal” doctrine with voluntary recitations of the Pledge, I think the example cited by Polycarp is a wonderful illustration of your point. My point was simply that tradition will be central to these discussions as long as ceremonial deism and human sociology play a factor.

Actually, I think I’ve got a pretty good grasp on our system of government. Of course, maybe my ego is inflated from all my advanced degrees in government, political science, and law.

Having said that, I’m willing to concede that the will of the majority doesn’t end the inquiry. Lucky for my credibility, I never said it does:

More importantly, to the extent that you’re arguing that the Bill of Rights is a “trump card,” you’re flat wrong. The burden is on the person claiming a violation of his/her Constitutional rights to prove that he/she has a Constitutional right, and that it was/is being violated. And even if he/she is successful in proving that, the State action is still valid if the State can show the action is narrowly tailored to serve a compelling state interest. Yes, you read that right – even if everyone agrees that a Constitutional violation has occurred, the State can continue to violate those Constitutional rights if its interests are compelling enough. In other words, your “trump card” can be trumped by the will of the majority.

I realize Apos thinks I’ve added “absolutely nothing to our discussion,” but I was merely trying to limit the discussion to relevant factors. I wasn’t saying that in my opinion the reasons of the angry California parents don’t matter; I was saying that constitutionally the reasons of the angry California parents don’t matter. Whether the recitation of the Pledge in school has merit, or whether people can still say the Pledge outside of school, are irrelevant to whether the Pledge is unconstitutional. Obviously, Apos still wants to talk about those things, but they’re red herrings. We shouldn’t follow him down that path.

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Ah, I hadn’t realized you were playing the “strict scrutiny” card before – much becomes clear!

But the question is whether the state, or to be more specific the school district, has a “compelling governmental interest” in enforcing the rote recitation of a formulary designed to inculcate a sense of patriotism in supervention of the rights of the individuals being compelled to recite it. And I think Barnette is controlling here, along with the item from Lee used by the 9th Circuit to suggest that “everyone’s expected to do this, but you can be excused from it” is still strongly coercive to school-age children. (I never thought I’d be quoting Justice O’Connor approvingly in a constitutional law argument! ;))

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—Whether the recitation of the Pledge in school has merit, or whether people can still say the Pledge outside of school, are irrelevant to whether the Pledge is unconstitutional. Obviously, Apos still wants to talk about those things, but they’re red herrings. We shouldn’t follow him down that path.—

You’re a either a man of remarkably bad faith, or you haven’t been following the relevant portions of this thread. If you had, you’d note that this particular point is (as stated) a tangent fom the main discussion about legal rationale, and it is a tangent inspired by decembers endless inability to distinguish between being forced and NOT being forced: an inability he continues by misquoting, of all people, YOU, in order to try and support his point. Of course, you don’t seem immune from sharing in it from time to time, declaring the idea that kids could recite the pledge in class “a fallacy” and presenting laughably irrelevant idea that children cannot recite the pledge out loud in class… during classtime. Yes, kids can’t talk during classtime… but not all time spent in the classroom is classtime. Who’s confusing the legal and emotional appeals again?

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Either that, or perhaps you attended the University of Oversimplification.:wink:

That’s a total non-point. I could similarly argue that you only have a right to live to the extent that a person who murders you is apprehended and brought to justice. So I could say that the burden is on you to not be murdered. But that doesn’t change anything about your rights. As with any right, others may infringe on it, but that doesn’t mean it exists only passively.

That’s still not the same thing as saying “majority rules”. The rights of minorities can be protected in this country. The white majority may have ruled for awhile in the South, but eventually were forced to give up segregation.

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How does teaching children to use lies and mob appeal to ignore laws that they don’t like build good citzenship? Doesn’t refusing to provide justice to atheists make a mockery of the pledge?

Next time I get pulled over, I wonder if “But officer, that was simply ceremonial speeding” would work.

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I’m not getting your point regarding ignoring laws one doesn’t like. Nobody is doing that.

Your point about lies and mob appeal is an interesting one. Something related to it is discussed in Gertrude Himmelfarb’s book, The De-Moralization of Society: From Victorian Virtues to Modern Values

The point about the Victorians not being “hypocritical” relates to critics who have noted that Victorians didn’t always live up to their ideals. Her idea that it was beneficial for the Victorians to strive for certain values, even though they didn’t always practice them. That is, failure to totally fulfill their values wasn’t hypocrisy, it was weakness.

Similarly, I think it’s good to train our children to believe in “liberty and justice for all,” even if the system doesn’t work perfectly. It’s better to use those words by rote repetition than not to use them.

BTW, as an atheist, I don’t find it “unjust” to have to say the word “God” or to see that word on my coins. Since I’m an atheist, saying “God” is no more problematical than cheering the Boston Red Sox, even though I’m Yankee fan.

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Good for you. It could be dismissed as that trivial or we could take it as a precursor to extensive church and state copulation and nip it in the bud as the visionary document, the Constitution proscribes it.

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Pardon us, we’d forgotten that since January 20, 2001, the First Amendment to the Constitution stopped being a part of the “supreme law of the land.” Those of us who were raised to an idealistic respect for democratic institutions tend to forget details like that. :rolleyes: