Freethought & Rationalism Archive

Toto · 03-04-2003, 04:50 PM

The Strange Origin of the Pledge of Allegiance

RufusAtticus · 03-05-2003, 12:17 PM

The text of the proposed pledge amendment:

Quote:

SECTION 1. A reference to God in the Pledge of Allegiance or on United States currency shall not be construed as affecting the establishment of religion under the first article of amendment of this Constitution.

This is good evidence that the senator who wrote this did not read the Newdow II decision or is plain dumb.

What is being declared to violate the first amendment is not the pledge itself but rather a government enity encourgaging kids to say it.

Grumpy · 03-05-2003, 02:15 PM

To paraphrase Lincoln: How many examples of established religion do you have, if you say none of these examples of established religion are to be construed as such?

Calling a tail a leg doesn't make it a leg.

hezekiah jones · 03-05-2003, 03:48 PM

Originally posted by Stephen Maturin
... Newdow conflicts with a Seventh Circuit decision.

Got a cite for that 7th Cir. opinion Stephen?

I mentioned this to someone today and they looked at me funny. I managed to avoid saying, "Er, I read it on an internet DB."

Toto · 03-05-2003, 04:09 PM

Sherman v. Community Consolidated School District 980 F.2d 437 (7th Cir. 1992)

"Sherman" is Rob Sherman, and he discusses his case on his web page:

http://www.robsherman.com/informatio.../2002/1222.htm

Sherman had challenged a statute that seemed to require his children to recite the pledge, but the court found that his children were not actually required to do so. The reasoning is convoluted.

Opinion here

scombrid · 03-05-2003, 04:30 PM

Quote:

It is usually reguired to be recited by schoolchildren, who in many cases have little understanding of it meaning (not to mention intent) and merely spout it by rote.

I pledge allegiance to the flag of the United States of America
And to the republic for witches stand
One Nation Under God, invisible (or individual but rarely will you hear a first grader get indivisible correct)

hezekiah jones · 03-05-2003, 05:53 PM

Thanks Toto!

Toto · 03-05-2003, 10:07 PM

Sherman v. Community Consolidated School District sends a clear message that anyone who tries to litigate "under God" in the 7th circuit will be treated like a nutcase.

Some sample quotes:

Quote:

We have not overlooked some juicy tidbits of legislative history that plaintiffs proffer. Senator Netsch spoke against the adoption of para. 27-3, expressing a belief that the bill could not coexist with Barnette. Senator Knuppel replied: "it amazes me that these people get up and read that kind of garbage that Jackson [Justice Robert Jackson, author of the majority opinion in Barnette] had there, his advise [sic] from the Supreme Court, I rate just about as highly as I do the advise [sic] from Congress." Senate Debates, 81st Illinois General Assembly, May 22, 1979, at 272. Senator Lemke then called for the election of federal judges and added: "Maybe we ought to abolish the Supreme Court and have a dictatorship like in Russia because in Russia at least they say a pledge of allegiance to their own flag." Ibid. It is hard to believe that an elected official of Illinois prefers totalitarian government to democracy under law just because dictatorships employ more patriotic slogans, which dictators may deem necessary to their success. That two state senators are able to bring obloquy upon themselves does not help us know whether para. 27-3 means "all pupils" rather than "willing pupils". Senator Nimrod, the bill's sponsor, treated the recitation as non-compulsory. Id. at 270-71. Statements on the floor of the state's lower chamber may be read either way. These unenlightening exchanges do not show that Illinois enacted a law that would be stillborn under Barnette.

(Did they mean unenlightened rather than unenlightening?)

And it's not enough that the legislature announces an unconstitutional purpose and thums its nose at the Supreme Court, evidently.

Quote:

By remaining neutral on religious issues, the state satisfies its duties under the free exercise clause. Employment Division v. Smith, 494 U.S. 872 (1990). All that remains is Barnette itself, and so long as the school does not compel pupils to espouse the content of the Pledge as their own belief, it may carry on with patriotic exercises. Objection by the few does not reduce to silence the many who want to pledge allegiance to the flag "and to the Republic for which it stands".

What? Is "under God" neutral on religion issues? Does this mean that kids can say the Pledge with their fingers crossed?

Quote:

All of this supposes that the Pledge is a secular rather than sectarian vow. Everything would be different if it were a prayer or other sign of religious devotion.

What part of God is not religious?

Quote:

Of course Lemon was not devised to identify prayer smuggled into civic exercises

so they won't use Lemon.

But this seems to be the heart of it:

Quote:

Our approach is more direct. Must ceremonial references in civic life to a deity be understood as prayer, or support for all monotheistic religions, to the exclusion of atheists and those who worship multiple gods? You can't understand a phrase such as "Congress shall make no law respecting an establishment of religion" by syllogistic reasoning. Words take their meaning from social as well as textual contexts, which is why "a page of history is worth a volume of logic." New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921) (Holmes, J.). Unless we are to treat the founders of the United States as unable to understand their handiwork (or, worse, hypocrites about it), we must ask whether those present at the creation deemed ceremonial invocations of God as "establishment." They did not. See Allegheny, 492 U.S. at 671-73 (opinion of Kennedy, J.).

The court goes on to list all of the ceremonial invocations of the Deity through American history, without admitting the clear evidence of at least a certain amount of hypocricy.

The opinion ends with a list of every dictum from the Supreme Court that indicates "under God" is compatible with the establishment clause, and says

Quote:

If the Court proclaims that a practice is consistent with the establishment clause, we take its assurances seriously. If the Justices are just pulling our leg, let them say so.

Do I detect a certain lack of seriousness of purpose in the 7th circuit's language? Are they signalling that they know there's no logic behind their opinion? But what are you going to do about it?

Stephen Maturin · 03-06-2003, 05:53 AM

Quote:

Originally posted by Toto
Sherman v. Community Consolidated School District sends a clear message that anyone who tries to litigate "under God" in the 7th circuit will be treated like a nutcase.

Someone's going to be treated like a nutburger in any Seventh Circuit case where Judge Frank Easterbrook writes the opinion. Sherman is vintage Easterbrook; the opinion oozes derision, sarcasm and way-too-clever turns of phrase. Judge Easterbrook is by all accounts an extraordinarily intelligent and capable jurist. Like so many exceptionally talented people, he just can't keep a lid on his contempt for those who advocate positions inconsistent with his own.

In the Newdow majority opinion Judge Goodwin disposed of Sherman in two paragraphs:

Quote:

The only other United States Court of Appeals to consider the issue is the Seventh Circuit, which held in Sherman v. Community Consolidated School District 21, 980 F.2d 437 (7th Cir. 1992), that a policy similar to the one before us regarding the recitation of the Pledge of Allegiance containing the words �one nation under God� was constitutional. The Sherman court first stated that:

If as Barnette holds no state may require anyone to
recite the Pledge, and if as the prayer cases hold the
recitation by a teacher or rabbi of unwelcome words
is coercion, then the Pledge of Allegiance becomes
unconstitutional under all circumstances, just as no
school may read from a holy scripture at the start of
class.

980 F.2d at 444. It then concludes, however, that this reasoning is flawed because the First Amendment �[does] not establish general rules about speech or schools; [it] call[s] for religion to be treated differently.� Id. We have some difficulty understanding this statement; we do not believe that the Constitution prohibits compulsory patriotism as in Barnette, but permits compulsory religion as in this case. If government-endorsed religion is to be treated differently from government-endorsed patriotism, the treatment must be less favorable, not more.

The Seventh Circuit makes an even more serious error, however. It not only refuses to apply the Lemon test because of the Supreme Court�s criticism of that test in Lee, but it also fails to apply the coercion test from Lee. Circuit courts are not free to ignore Supreme Court precedent in this manner. Rodriguez de Quijas v. Shearson/Am. Exp., Inc., 490 U.S. 477, 484 (1989) (�If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.�). Instead of applying any of the tests announced by the Supreme Court, the Seventh Circuit simply frames the question as follows: �Must ceremonial references in civic life to a deity be understood as prayer, or support for all monotheistic religions, to the exclusion of atheists and those who worship multiple gods?� 980 F.2d at 445. For the reasons we have already explained, this question is simply not dispositive of whether the school district policy impermissibly coerces a religious act.

abe smith · 03-07-2003, 06:57 AM

.... is the fact that this week GWB crossed da Pope off as a possible supporter ( = the pope & all those true believers who support anything the Pope says), ... Bush, I say , denigrated the pope's also-this-week public statement that (roughly phrased, not verbatim) GWB's planned war against Iraq is **morally-UNjustified. ** Let my fellow UMMERKINS remember this the next time Bush sucks-up to the Pope to get the RC vote. PAH!

03-07-2003, 06:57 AM	#50
abe smith Veteran Member Join Date: Apr 2001 Location: springfield, MA. USA Posts: 2,482	Almost-totally inapposite to this thread .... is the fact that this week GWB crossed da Pope off as a possible supporter ( = the pope & all those true believers who support anything the Pope says), ... Bush, I say , denigrated the pope's also-this-week public statement that (roughly phrased, not verbatim) GWB's planned war against Iraq is morally-UNjustified. Let my fellow UMMERKINS remember this the next time Bush sucks-up to the Pope to get the RC vote. PAH!

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03-04-2003, 04:50 PM	#41
Toto Contributor Join Date: Jun 2000 Location: Los Angeles area Posts: 40,549	The Strange Origin of the Pledge of Allegiance

03-05-2003, 02:15 PM	#43
Grumpy Veteran Member Join Date: Jul 2000 Location: Alaska, USA Posts: 1,535	To paraphrase Lincoln: How many examples of established religion do you have, if you say none of these examples of established religion are to be construed as such? Calling a tail a leg doesn't make it a leg.

03-05-2003, 03:48 PM	#44
hezekiah jones Veteran Member Join Date: Feb 2001 Location: WI Posts: 4,357	Originally posted by Stephen Maturin ... Newdow conflicts with a Seventh Circuit decision. Got a cite for that 7th Cir. opinion Stephen? I mentioned this to someone today and they looked at me funny. I managed to avoid saying, "Er, I read it on an internet DB."

03-05-2003, 04:09 PM	#45
Toto Contributor Join Date: Jun 2000 Location: Los Angeles area Posts: 40,549	Sherman v. Community Consolidated School District 980 F.2d 437 (7th Cir. 1992) "Sherman" is Rob Sherman, and he discusses his case on his web page: http://www.robsherman.com/informatio.../2002/1222.htm Sherman had challenged a statute that seemed to require his children to recite the pledge, but the court found that his children were not actually required to do so. The reasoning is convoluted. Opinion here

03-05-2003, 05:53 PM	#47
hezekiah jones Veteran Member Join Date: Feb 2001 Location: WI Posts: 4,357	Thanks Toto!

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