(POL) Reciting Pledge of Allegiance in school unconstitutional

[SirFozzie]

(I decided to post this myself because well.. it's a legitimate story, and I wanted to try to at least get ONE thread into the discussion before it devolved into a war/flamefest)

From CNN.COM

AP: Federal judge in San Francisco declares it unconstitutional to recite the Pledge of Allegiance in public schools. Details soon.

1. Any one surprised it was in San Fran (even if it was a federal judge?)

2. Are they saying that the Pledge itself is wrong to say in class, or just the "Under God" part.. Cuz if it's the whole thing, then declaring it's illegal to pledge allegiance to the USA is just stupid.

3. If it's The Under God thing.. Strike another one up for the folks who think that the USA should be a completely secular nation, which I disagree with.. The Constitution may mandate seperation of church and state, but that doesn't mean that if you are part of the nation, you may not have religion (which I think is the ultimate goal of some of the folks, which is as bad as the other side of the issue).

4. I bet this one gets fast-tracked to the SCOTUS once the vacancies are filled. Time for the Religious Right to flex some newly gained muscle I think.

[Crapshoot]

Its the correct decision, but will probably be struck down by SCOTUS. Actually, its begging for Congress to go grandstanding again. Heck, this is their role - I expect some legislation on the issue.

[JonInMiddleGA]

1. Any one surprised it was in San Fran (even if it was a federal judge?)

Not a bit.

4. I bet this one gets fast-tracked to the SCOTUS once the vacancies are filled.

Seems like a pretty safe bet to me.

[jeff061]

Shouldn't be unconsitutional to say it, should be to ask or force someone to say it.

[Subby]

Yay!

I can't stand the pledge and it has nothing to do with the religous pieces. I think pledges in general are pretty empty and meaningless. Being asked to pledge allegiance to something reeks of big brother...

Actions are what count, not words.

Anyway, my personal feelings aside, I can't imagine this ruling standing for any length of time.

[JonInMiddleGA]

U.S. District Judge Lawrence Karlton ruled

http://207.41.18.73/caed/staticOther/page_516.htm

Born 1935 in Brooklyn, NY
Federal Judicial Service:
U. S. District Court, Eastern District of California
Nominated by Jimmy Carter on June 5, 1979, to a seat vacated by Thomas J. MacBride; Confirmed by the Senate on July 23, 1979, and received commission on July 24, 1979. Served as chief judge, 1983-1990. Assumed senior status on May 28, 2000.

Education:

Columbia Law School, J.D., 1958

[gi]

Generally the 'under God' part is where the sticky point develops. 1953 (I believe, give or take a year) was when the 'under God' part was added to the pledge. This was done in part because there was a fear from 'godless communism' that the USSR represented. The Knights of Columbus organization was the main driving force behind this addition to the pledge.

If a kid doesn't believe in the Christian God (many americans don't) they shouldn't be force to stand out by not saying a mandatory pledge. They will be made to feel different, inferior. I do not want this country to stand for this. Religion and State should be seperate. We already have countless examples of what can go wrong if they are mixed. Gotta keep it short, work is calling.

[albionmoonlight]

Couple Quick Points to Clarify:

1.) No one has to say the Pledge. That has been the case for a long time.

2.) SCOTUS has managed to dodge the issue for a long time. I think that the Justices know that adding Under God to the Pledge in the 50's is/was a violation of the Establishment Clause. But they have been reluctant to been seen as godless themselves. As isolated and ivory tower as they are, there is still at least an awareness of the practical in them.

3.) My 2c? The Court has hinted enough times in dicta (parts of cases that are not legally binding) that Under God is O.K. I think that those hints will be enough to cobble something together to save Under God, but the opinion will be written in such a way as to make the holding very narrow and limited to that one issue.

[Solecismic]

Originally Posted by President Eisenhower, 1954

From this day forward, the millions of our school children will daily proclaim in every city and town, every village and rural schoolhouse, the dedication of our Nation and our people to the Almighty.

This is what our president said when signing the legislation that added "under God" to the Pledge of Allegiance.

This is exactly the kind of indoctrination our founding fathers feared when they conceived the wall of separation.

[yabanci]

As I read the little blurb from the AP, this is neither big news nor unexpected. The Ninth Circuit originally ruled that the "under god" portion of the pledge violated the US constitution. That ruling was reversed by the US Supreme Court on the standing issue (i.e., the plaintiff was not the appropriate person to bring the case). The high court dodged the constitutional issue, leaving it for another day with plaintiffs who have proper standing.

This case now has proper plaintiffs and the case is in district court. Since the constitutional ruling originally made by the Ninth Circuit was not reversed by the Supreme Court, the district court judge is bound by precedent to follow the rulings of the appellate court of his circuit.

This is just the first step in having the constitutional issue finally decided. Everybody knew it was coming.

edit: this is the AP story on CNN:

Judge declares Pledge unconstitutional

Wednesday, September 14, 2005; Posted: 2:21 p.m. EDT (18:21 GMT)

SAN FRANCISCO, California (AP) -- Reciting the Pledge of Allegiance in public schools was ruled unconstitutional Wednesday by a federal judge who granted legal standing to two families represented by an atheist who lost his previous battle before the U.S. Supreme Court.

U.S. District Judge Lawrence Karlton ruled that the pledge's reference to one nation "under God" violates school children's right to be "free from a coercive requirement to affirm God."

Karlton said he was bound by precedent of the 9th U.S. Circuit Court of Appeals, which in 2002 ruled in favor of Sacramento atheist Michael Newdow that the pledge is unconstitutional when recited in public schools.

[JonInMiddleGA]

Originally Posted by yabanci

... bound by precedent to follow the rulings of the appellate court of his circuit.

Which raises a decent controversial point for a whole different thread: the proper role of precedent in the legal system: creates consistency or allows one error to be multiplied many times over?

[BrianD]

Any reason we can't just drop the "under God" part and make everybody happy?

[Klinglerware]

Originally Posted by BrianD

Any reason we can't just drop the "under God" part and make everybody happy?

Because that won't make everybody happy.

[BrianD]

Originally Posted by Klinglerware

Because that won't make everybody happy.

Do you object to the pledge itself, the mention of God, or the proposed non-mention of God?

[Klinglerware]

Originally Posted by BrianD

Do you object to the pledge itself, the mention of God, or the proposed non-mention of God?

My point was that if you remove the reference to God, the Christian Right will be angered. They have enough clout to ensure that this issue will not go away quietly.

[BrianD]

Originally Posted by Klinglerware

My point was that if you remove the reference to God, the Christian Right will be angered. They have enough clout to ensure that this issue will not go away quietly.

You can always make that phrase optional. Change it to "under $deity" or allow people to take it out completely. Wouldn't you think that they would be satisfied if they were still allowed to say "God" even if others didn't have to?

[Klinglerware]

Originally Posted by BrianD

You can always make that phrase optional. Change it to "under $deity" or allow people to take it out completely. Wouldn't you think that they would be satisfied if they were still allowed to say "God" even if others didn't have to?

I do think you have a reasonable idea. I cannot speak for what Christian conservatives will think, but based on their history, I have my doubts with whether they would accept such a compromise...

[kcchief19]

Originally Posted by SirFozzie

4. I bet this one gets fast-tracked to the SCOTUS once the vacancies are filled. Time for the Religious Right to flex some newly gained muscle I think.

I'll take the under. The Court has had the opportunity in the past to take this case head-on and has not done so. I don't think that the majority of justices will want anything do with this.

The thing about "fast tracking" cases to the Supreme Court is that it still takes years to get to that point, if the court agrees to hear it all. There may be politicians who want the court to get involved, but that doesn't mean the court wants to. The court has historically avoided cases like this if at all possible, and when it does tackle them you get middle of the road decisions like the 10 Commandments case from last spring.

That could certainly change based on the makeup of the court. Even if a strong conservative lands in O'Connor's seat, I doubt that this is the kind of case that Roberts will want to make to lead off his legacy pending his confirmation.

[QuikSand]

Originally Posted by albionmoonlight

1.) No one has to say the Pledge. That has been the case for a long time.

Technically true. But difficult.

The slippery issue is what happens when a public school has an employee (or someone else formally appointed for the role bearing at least the school's imprimateur) "leading" the pledge for all the students? While this may be a nominally optional activity and any given student is technically free to leave the room or opt not to take the pledge -- I think most any reasonable consideration of such a circumstance makes it clear that:

-this certainly has the ring of "officially approved by the school (government)" to it; and

-while participation is optional, the few who might opt not to participate will do so at some potentially meaningful cost; plus

-placing the burden to "opt out" onto young children may itself be an unfair burden for decision-making at the individual level.


Is there any circumstance where government employees, in their official duties, ought to be talking (to children no less) about our relationship with God? That is essentially what is at issue here.

[albionmoonlight]

Originally Posted by QuikSand

Technically true. But difficult.

The slippery issue is what happens when a public school has an employee (or someone else formally appointed for the role bearing at least the school's imprimateur) "leading" the pledge for all the students? While this may be a nominally optional activity and any given student is technically free to leave the room or opt not to take the pledge -- I think most any reasonable consideration of such a circumstance makes it clear that:

-this certainly has the ring of "officially approved by the school (government)" to it; and

-while participation is optional, the few who might opt not to participate will do so at some potentially meaningful cost; plus

-placing the burden to "opt out" onto young children may itself be an unfair burden for decision-making at the individual level.


Is there any circumstance where government employees, in their official duties, ought to be talking (to children no less) about our relationship with God? That is essentially what is at issue here.

I agree with you. I was simply trying to cut off a potentially wrong line of thought before it got started. Some people think that this issue is about whether the government can make you say "Under God" in the pledge. It is not. In fact, the government cannot make you say the pledge at all. The State forcing you against your will to pledge your allegiance to anything runs contrary to the core of the First Amendment. I would hope that most people agree that no one should be forced to say the Pledge. (And to the extent that some people do beleive that, I am glad that we are not living in their America).

Instead, this question goes to (as you point out) whether "Under God" in the Pledge is an unconstitutional endorsement of religion by the government--regardless of who does and does not have to say it.

[albionmoonlight]

dola-

While I am clarifying things that people may not need clarified: One of the things that confuses people is that the First Amendment contains two, somewhat opposite, statements about Religion. The government cannot Establish a religion. The government also cannot prohibit the free exercise of religion. It really is a spectrum. On the one end, you could have a state mandated religion and criminal penalties for not being a part of that religion (or if you are of the science fiction bent, a government that uses drugs and psychotherapy to brainwash you into believing the state religion). That world goes too far toward Establishing a religion. On the other end of the spectrum, you could have a world in which the government refused to provide any services (utilities, police protection ,etc.) to religious institutions. That world goes too far toward prohibiting the free exercise of religion. We live somewhere in the middle.

It is important to note that the consitutional provision that I use to argue that my government employer cannot make me take off my religiously inspired headgear (the free exercise clause) is totally different from the constitutional provision that I use to argue that the government cannot start city council meetings with a Christian prayer (the Establishment Clause). People tend to conflate the two because they both involve religion and the First Amendment.

In this case, the Establishment Clause is at issue. No one is saying that you cannot say Under God. No one is saying that you can't pray. People are instead saying that the government should not be in the business of establishing a religion by making Under God part of the official Pledge.

FWIW, I agree that Under God should not be in the Pledge--but I also think that the Court will end up writing a wishy-washy opinion in which Under God is upheld, but no real new guidance is created.

[MrBigglesworth]

Originally Posted by albionmoonlight

The State forcing you against your will to pledge your allegiance to anything runs contrary to the core of the First Amendment.

Why have it at all then? The whole idea of blind loyalty to country is nationalistic at best.

"Under God" should definitely not be in there. If it were, "One nation, that denies the the existence of God..." it would never be tolerated.

[Solecismic]

That's the core of the issue. If my son is ever confronted with it himself, I would have a difficult decision.

On the one hand, saying it doesn't harm him. So my initial reaction would be to tell him not to worry about the words, just join in. After all, I'm not militant about atheism, the way I am about smoking.

But does that send the wrong message to him? If I tell him to go with the crowd, am I setting him up to follow his peers instead of his own independence later on in life? Will he show less respect for my leadership in his life as a result?

So I could encourage him to sit down or remain silent while his classmates take their proverbial soma. Now, he risks ostracism. He could risk the disfavor of a teacher who is particularly religious.

And why? It's not really his battle. It's mine. And it's not fair for me to instruct him to incur those risks without fully understanding the underlying issues. An elementary school child doesn't have that capacity.

So, I'm left with a Catch-22. Either I undermine my own authority as a parent, or I subject my child to potential harm.

I have to be honest with him. If I ignore the issue, he recites the pledge with his classmates, eventually he's going to wonder what "under God" means. And I'm going to have to tell him in my own words. I don't want that to happen at age 6.

I want him to make his own choices about religion some day, and I don't want the schools forcing that on him at an early age. Any more than I want them forcing sex education on him before he's old enough to understand romantic relationships.

[Flasch186]

Originally Posted by JonInMiddleGA

Which raises a decent controversial point for a whole different thread: the proper role of precedent in the legal system: creates consistency or allows one error to be multiplied many times over?

jeez I wonder which decisions you think are errors and which one's arent <----sarcasm

[Glengoyne]

Originally Posted by BrianD

You can always make that phrase optional. Change it to "under $deity" or allow people to take it out completely....

Favorite post so far!

Gotta love variables. That pledge is context specific.

[Tekneek]

Originally Posted by Klinglerware

Because that won't make everybody happy.

How many of those unhappy people actually know it has only been in there for about 50 years?

[st.cronin]

The Pledge is archaic. I don't have any idea if it actually served a purpose during the Cold War, but there's really no point to it now.

[Klinglerware]

Originally Posted by Tekneek

How many of those unhappy people actually know it has only been in there for about 50 years?

[Klinglerware attempts to restrain himself from making divisive, off-topic, and unproductive, comment about the recency of Confederate symbolism on southern state flags]

[Tekneek]

Originally Posted by Klinglerware

[Klinglerware attempts to restrain himself from making divisive, off-topic, and unproductive, comment about the recency of Confederate symbolism on southern state flags]

Mississippi is really the only holdout, right?

[JonInMiddleGA]

Originally Posted by Flasch186

jeez I wonder which decisions you think are errors and which one's arent <----sarcasm

Bzzt ... I was absolutely talking strictly generically here, not about this case or any other case. This time, methinks you read too much into what I was saying.

Further, I think a case can be made for placing relatively high value on precedent and for placing relatively low value on it too. Right now I'm not sold on either position solidly on this (one of the relatively few times I suspect you'll hear that from me on a political topic).

In lieu of a firm belief about which is the proper role for precedent to take overall, in the interim I'll just substitute whichever position best serves a specific aim at a given moment.

Like I said, it's a subject all its own, probably not one worth sidetracking this thread over.

[Klinglerware]

Originally Posted by Tekneek

Mississippi is really the only holdout, right?

At this point, yeah. I do remember that the Georgia case where a lot of people forgot that the incorporation of the battle flag was a recent phenomenon.

[ISiddiqui]

Further, I think a case can be made for placing relatively high value on precedent and for placing relatively low value on it too. Right now I'm not sold on either position solidly on this (one of the relatively few times I suspect you'll hear that from me on a political topic).

It depends on your view of the legislature. If you hold them in high regard, then you'd be more akin to place a low value on precedent and just have the judge read the code book and apply law. If you hold the legislature in low regard (as we did early in the republic), then you place a higher value on precedent (you trust the tradition of judgeship throughout the years over the code-making of the legislature).

[sterlingice]

Originally Posted by BrianD

You can always make that phrase optional. Change it to "under $deity" or allow people to take it out completely. Wouldn't you think that they would be satisfied if they were still allowed to say "God" even if others didn't have to?

Haha- I love the "under $diety" with deity being a variable of type-string

EDIT: D'oh. Missed Glengoyne's post about this

SI

[kcchief19]

Originally Posted by Solecismic

So, I'm left with a Catch-22. Either I undermine my own authority as a parent, or I subject my child to potential harm.

It's a catch-22 for the kid too. I was raised predominantly with Catholic teachings, although I never went to church. My mother felt very strongly about Catholic values, but she hated the way the church was run. So even though I never went to services, I was raised with a strong Catholic background and my mother stressed tolerance for (most) other religions and for the non-religious. She never wanted me to push my religious views on others and conversely she did not want anyone to push their religious views on me.

The pledge was never much of an issue. I was a smart kid, so I caught on early on that the words "under god" really didn't belong in school because there is supposed to be a separation of church and state. But Springfield, Mo., is in the buckle of the Bible Belt and religion and god in school didn't end at the pledge. It went a lot further, so far that while employees rarely took part in displays of faith, it wasn't uncommon for the school to sanction them by allowing and promoting bible meetings after school and allow students to lead prayers during school assemblies and other events.

By and large, I think the debate over the pledge only really matters to about 10 percent of the population or less; 5 percent who think this country started going downhill when they took god out of the schools and 5 percent who think that all public forms of religious expressions are patently offensive. I have seen two discussions of the pledge on FOFC: one initiated by the Nedow case and this one. Unless someone brings it up, most people don't care.

I only think it's "important" in the sense that the pledge is the tip of the iceberg in a large sense of religion in schools. If you go to school with kids who are just like you, it doesn't mean that much. Religion only becomes an issue when you are in the minority. In my high school of 1,500 kids, there were probably 10 Catholics. The overwhelming majority (90 percent +) were protestant, primarily Assembly of God. They largely saw nothing wrong with these school prayer activities, because it was their prayer and activities. They only ones who felt uncomfortable were the Catholic, a couple of Lutherans and the atheists (that was about the extent of our diversity). I felt terribly uncomfortable being the only one in the room not taking part in the prayer.

There wasn't a lot of understanding on the issue from both sides. I didn't understand why it was important for them to pray at a school assembly when they could pray quietly to themsevles or at anytime during the 17 1/2 hours a day when they were not at school, and the didn't understand what my problem was with them praying. What did make the issue contentious was that when we proposed an alternate solution by allowing anyone of a different religion to lead a prayer in rotation or develop a non-denominationsl prayer, the Assembly of God group were dead set against it.

I've never felt good about the whole situation. It's events like that they cause people 20 years later to dislike the pledge and any other forms of religious expression in schools. I don't like that we put kids in situations like that where they are made to feel different. I was made fun of by other kids for not taking part in the prayer. Fortunately I had enough self-esteem and conviction to realize that they were the ones with the problem, not me, but not all kids do.

[JonInMiddleGA]

Originally Posted by ISiddiqui

It depends on your view of the legislature. If you hold them in high regard, then you'd be more akin to place a low value on precedent and just have the judge read the code book and apply law. If you hold the legislature in low regard (as we did early in the republic), then you place a higher value on precedent (you trust the tradition of judgeship throughout the years over the code-making of the legislature).

WARNING: Rhetorical question dead ahead

Hmm ... what if I ain't real happy with one & even less thrilled with the other?

[Dutch]

Well, I've accepted that men and women who partake in homosexual acts should get a tax break...I guess I can accept this too.

[Raiders Army]

My toenails grow.

[kenparker23]

QUOTE]This is what our president said when signing the legislation that added "under God" to the Pledge of Allegiance. This is exactly the kind of indoctrination our founding fathers feared when they conceived the wall of separation.[/quote]

Jim, I have to disagree.

I think our founding fathers would be horrified to see what is going on right now.

When they talked about separation of church and state, they didn't mean state should supress church, and they did not mean that people should supress their religion.

We have forgotten that they meant religion should not control govenment.

[Dutch]

Originally Posted by kenparker23

Jim, I have to disagree.

I think our founding fathers would be horrified to see what is going on right now.

When they talked about separation of church and state, they didn't mean state should supress church, and they did not mean that people should supress their religion.

We have forgotten that they meant religion should not control govenment.

I don't see "Under God" as either harmful or helpful. I call it a wash and a big waste of everybody's time and money. Fighting for the sake of fighting.

[Abe Sargent]

If you want to know what our founding fathers meant with reagards to religion, you have no further to look than the first acts of Congress. Take a look and see what the first Congresses did. You'll see laws that appoint chaplins, purchase Bibles for natives, and so forth. These sort of religious laws were very common in the early state, and if you think the founding fathers would be UNhappy with the Under God phrase in a pledge, then you'd be sorely mistaken.

Note, I am not judging whether these laws or the Under God phrase are right and wrong, just that it would be in total concert with early acts by our government.


-Anxiety

[Flasch186]

Originally Posted by JonInMiddleGA

Bzzt ... I was absolutely talking strictly generically here, not about this case or any other case. This time, methinks you read too much into what I was saying.

Further, I think a case can be made for placing relatively high value on precedent and for placing relatively low value on it too. Right now I'm not sold on either position solidly on this (one of the relatively few times I suspect you'll hear that from me on a political topic).

In lieu of a firm belief about which is the proper role for precedent to take overall, in the interim I'll just substitute whichever position best serves a specific aim at a given moment.

Like I said, it's a subject all its own, probably not one worth sidetracking this thread over.

if youre talking broadly I see your point....but it certainly would end up being partisan when it becomes narrower.

[Solecismic]

Originally Posted by Thomas Jefferson

Because religious belief, or non-belief, is such an important part of every person's life, freedom of religion affects every individual. State churches that use government power to support themselves and force their views on persons of other faiths undermine all our civil rights. Moreover, state support of the church tends to make the clergy unresponsive to the people and leads to corruption within religion. Erecting the "wall of separation between church and state," therefore, is absolutely essential in a free society.

- Letter to the Virginia Baptists, 1808.

[MrBigglesworth]

Originally Posted by kenparker23

When they talked about separation of church and state, they didn't mean state should supress church, and they did not mean that people should supress their religion.

When has the state suppressed your ability to conduct your religion on your own time?

[Dutch]

Originally Posted by MrBigglesworth

When has the state suppressed your ability to conduct your religion on your own time?

That's a fair question. I think the answer is never.

Another one, I think--When did the state force you to believe in God?

Also, the answer is never.

[Crapshoot]

Originally Posted by Dutch

That's a fair question. I think the answer is never.

Another one, I think--When did the state force you to believe in God?

Also, the answer is never.

When its asking you to pledge allegiance to a state under god, what is that exactly ?

[Dutch]

Originally Posted by Crapshoot

When its asking you to pledge allegiance to a state under god, what is that exactly ?

Are you answering my question with a question?

[ISiddiqui]

... and if the response is just the state is merely pressuring you to believe in God, then when has the state pressure you to become an atheist?

[Crapshoot]

Originally Posted by Dutch

Well, I've accepted that men and women who partake in homosexual acts should get a tax break...I guess I can accept this too.

Cool. I've accepted that homophobes have their rights to free speech, including lines like "homosexual acts ... tax breaK" as if they are giving up flesh and blood.

[Dutch]

Originally Posted by Crapshoot

Cool. I've accepted that homophobes have their rights to free speech, including idiotic lines like "homosexual acts ... tax breaK" as if they are giving up flesh and blood.

Your running from my question, arent' you? That would make you a question-aphobe. Yet, you take it out on the questoner, not the act of questioning. I'm so confused!

[Crapshoot]

Originally Posted by Dutch

Are you answering my question with a question?

rather, pointing out the absurdity of a statement. When you are pledging allegiance to something, and being told your country requires you to pledge to their god - well, that might be a bit of an endorsement.