Leviathan

I'm new, so I haven't read the threads upon threads concerning Newdow, but I'll state my argument briefly here. It comes from another thread, so anyone in that thread that wishes to state their remarks here is more than welcome.

Newdow ignores precedent. The dissent of Judge Fernandez, contrary to what Mr. enfant wishes to state, does not misstate the issue, but argues that the effect of "coercion" on any child is "de minimis," and Fernandez cites a slew of cases for this proposition. Most interestingly, Fernandez also cites numerous members of the Supreme Court, past and present, that suggest in previos decisions that they would be against the holding of Newdow. Most specifically, and most damning for the majority in Newdow, is the statements from Justice O'Connor, yes Mrs. swing vote herself, stating she believes the "Under God" message has a secular purpose.

Additionally, Newdow has been criticized through legislative channels, as well as numerous law reviews. 4 USC 4, the federal law concrning the pledge of allegiance, made numerous Congressional findings concerning the Constitutionalilty of such law, quoting Justices Goldberg, Harlan, Berger, among others to support the proposition. Once again, Newdow flies in the face of precedent.

There is a sister decision, from the 7th Circuit in Illinois, which decided the very same issue at hand in Newdow, entirely differently. That decision is Sherman, and has been followed by other numorous courts, whereas the only decision criticizing Sherman? You guessed it: Newdow. Oh, and any courts following Newdow? Not really: the only one to cite it has found its argument "entirely unpersuasive."

Rhaedas

I'm not sure if this case is going too far. Is it pushing for "under god" to be illegal in the pledge, or is it just enforcing the allowance of not making a student say what they don't want to say?

Why do we have the pledge in schools anyway? What if a student doesn't object to the "under god" part, but to the pledging part itself? Is this case for removal altogether?

I'd really be interested to know what this purpose is. It must be the same purpose as the IGWT on money...but I haven't figured out the non-religious purpose there either.

Toto

If you read the Newdow decision carefully, you will note that there is no "precedent." There are dicta that indicate how the court might rule, but no actual precedent.

You can seach the forum for "Newdow" and find the prior threads, but there are 4 pages of them.

A few:

the original thread:
a ruling on the constitutionality of the pledge

Some relevant comments by Bill Schultz in substantive criticism

Developments in Newdow v. US Congress

Since many of us have been through this issue before, I recommend that you look at the arguments Bill makes and respond to them

enfant terrible

I am sure this information has been posted before, but it is probably worth repeating, as the public is largely ignorant of it:

The words "under God" were added to the PoA in 1954. The case is about the constitutionality of that law and some of its consequences.

Students always have the legal right not to say those words or the entire Pledge, but that is irrelevant for the issue. It has long been a principle that opt-out allowance does not make state-sponsored religion constitutional.

Whichever part you object to, you are legally free not to participate in. But there is a drastic difference. The state is in no way required to be neutral on the issue of patriotism; it is perfectly constitutional for it to actively promote patriotic sentiments. You are free to oppose and protest that, but you have no right not to be exposed to it. Quite the contrary with religion: the state may not promote it; it is your right not to have to be subjected to such promotion; you should not have to choose between being forced to accept a religious message and actively protesting. Protest carries various risks and personal costs; if these are your only two choices, your rights are violated.

No. Only for returning to the pre-1954 text.

Its purpose was exactly what it says on its face: to add God to the national symbols.

Kevbo

One quick observation: if all court decisions depended upon predcedent, those decisions which established precedent would never have occurred.

Leviathan

Lets make one thing abundantly clear, gentleman, the concept of stare decisis in the American system of justice is of the utmost importance. While I openly concede that there is no specific Supreme Court case directly addressing this issue, other court precedent, coupled with other Federal Court of Appeals Districts decisions, make what is the precedential authority almost clear enough to smack you in the face. Newdow stands alone as a dissenting voice, or two judges, and in the midst of this whirlwind we find Fernandez's, what I consider, very well written dissent.

The Court case challenging the Pledge in its entirety has been decided, and decided in the negative. As long as there is not compulsion in saying the Pledge, it is not unconstitutional.

From Justice O'Connor:
"In my view, the words "Under God" in the Pledge, as codified at 36 USC 172, serve as an acknowledgement of religion with "the legitimate secular purposes of the solemnizing public occasions, [and] expressing confidence in the future." - This is just a snippet, I can provide the entire citation if you want it.

Thank you for the threads Toto.

This argument runs in direct contravention to Goldberg and Harlan's argument in Abington School District v. Schempp:

"But untutored devotion to the concept of neutrality can lead to invocation or approval of results which partake not simply of that noninterference and noninvolvement with the religious which the Constitution commands, but of a brooding and pervasive dvotion to the secular and a passive, or even active, hostility to the religous. Such results are not only not compelled by the Constitution, but, it seems to me, are prohibited by it. Neither government nor this Court can or should ignore the significance of the fact that a vast portion of our people believe in and worship God and that many of our legal, political, and personal values derive historically from religious teachings. Government must inevitably take cognizance of the existence of religion and, indeed, under certain circumstances the First Amendment may require them to do so." The normative proposition that one should not have to choose in school whether to say the pledge or not, is not supported by case law, absent of course Newdow. The Seventh Circuit opinion, Sherman, decided directly the opposite way of Newdow made note of the fact that such a "choice" was not coercive, and still entitled every child to the freedom granted to them by the Establishment clause. I see no persuasive reason in Newdow for overturning such precedent.

Finally, in response to Bill's proposition that O'Connor and Kennedy would "swing" to the other side, first, who says there would be a "swing" needed, and second, I think Bill might want to reevaluate that prediction, given O'Connor's statement I cited from above. Additionally, the Kennedy citation, if I'm reading it correctly, and going on what other courts have interpreted from his remarks, shows that a "reasonable" atheist would not claim to be harmed by the issue in Newdow, and thus he would *not* find it to be a breach of the Establishment Clause.

In my opinion, this case going to the Supreme Court would almost be a slam dunk.

Kevbo

Except that these aren't secular purposes, because secular people are amused at the invocation of a mystical being or enraged that the government would deliberately interject and sanctify divisive sectarian religious references into expressions of patriotism. The inclusion of religious propaganda into official expressions of patriotism makes secular people fear the future, which is the exact opposite of expressing confidence.

Of course, the government must recognize religion in that it must protect people from religious discrimination and ensure the right to free exercise, as mandated in the constitution. This runs directly counter to the notion of officially sanctioned government expressions of religion such as declaring that the United States is "under God." This is both an unconstitutional establishment of religion and a restriction of the free religious exercise of those who wish to express patriotism but disagree with the government's interjections of religion into patriotic statements.

The real constitutional issue is the establishment of religion by law of congress. The law that inserts "under God" into the pledge officially includes an affirmation of sectarian religious belief in its reason for doing so. It's not that students should not have to choose between saying the pledge or not, it's that millions of students should not have to choose between not expressing patriotism or swallowing sectarian religious belief along with the patriotism.

The majority of atheists and even a good many theists who respect the Bill of Rights would claim to be harmed by the issue in "Newdow," so that would be a very unreasonable definition of "reasonable."

Which unfortunately shows how the religious bias of this country can directly inhibit its stated goals of life, liberty and the pursuit of happiness. Having the government directly step on one's beliefs with no legitimate secular excuse (such as the promotion of the general welfare of children, in which case the government may intervene to stop religious parents from abusing their children in cases of refusing medical treatment, etc.) is a very serious gripe.

Buffman

I agree with Toto's recommendations. Bill's post is excellent. It examines the real underlying issue. Is it constitutional for the U.S. Government to "establish" a religious belief in a supernatural God...any supernatural God?

Leviathan

Bill's post is very thorough, but he goofs when he predicts that Kennedy and O'Connor would actually favor the holding of Newdow. Here is one, of many, law reviews supporting the exact opposite.

Thus, the question he asks, the one you quote from above, is a non-issue, if the "prayer" is not in fact a prayer, nor an establishment of religion. O'Connor certainly wouldn't find it as such, as would Kennedy. Couple that with the conservative base, and you've got 5. I've also read sources that Stevens believes it isn't (though not as plentiful), so that's 6.

What? O'Connor's reasons exemplify what the pledge is no more a prayer than me saying "Good morning class." Those are secular purposes if the law says as such, and the Sherman decision from the 7th Circuit, the one in direct contravention to Newdow, and followed by other Federal Circuits, says they are secular puropses. You have not provided a warrant for why they are religious in scope, nor provided any authority for the proposition.

Please note the bolded statement from Goldberg and Harlan, from above. Those statements imply there is no normative argument, in S. Ct. jurisprudence, that the US should take an active role in proclaiming such statements as "Under God" to be violative of the Establishment clause. That concurrence was used in Allegheny by the plurality which opined that such arguments from plaintiffs, as you are espousing, are not evidence of Establishment clause violations. Again, the basis of your argument is that the phrase is in fact an endorsement of religion. Almost all authority on this point, absent Newdow, disagrees with such a proposition.

Polls after Newdow showed that most people disapproved of the decision. The legislative mandate of the people was clear, when the vote in the house was like 400-20 something. The Senate was 99-0. Additionally, atheists have yet to come to grips with the "hypocrisy" argument. If you find the Constitution says that phrases such as "Under God" or "In God We Trust" are violative of the establishment clause, you are essentially saying people like James Madison and Thomas Jefferson are hypocrites for proclaiming the First Amendment, and then turning around and making such ceremonial statements. The dissent of Fernandez in Newdow makes these findings, as does my Notre Dame Law review from above. I can provide more citations if you wish, but I think the argument doesn't even need evidentiary support. Without question: Jefferson and Madison recognized the importance of the establishment clause, and at the same time made statements, did actions as politicians, and basically endorsed the idea that God bestowed rights on Americans. Just look at the Declaration of Independance and the Federalist Papers for goodness sake.

Until you show me some authority, absent this activist Ninth Circuit decision, I'm more inclined to see it as historical tradition, based upon the foundation of this country, moreso than "religious bias." The founding fathers stated God was a central part of this country, and then they created the Constitution. What you are telling me is that they are hypocrites, in constructing such a document, but then turning around and saying, "oh screw the establishment clause: I can still send missionaries and whatnot to the Indians." (Which, they did).

Toto

Douglas Kmiec is, of course, a conservative Catholic ideologue who is not in favor of church state separation. Do you have any more neutral observers?

What other federal circuits have followed Sherman?

How can you possibly maintain that a mention of God is not religious? Are you arguing ceremonial Deism? This is trivializing religion.

The decision in Newdow is well reasoned. The Supreme Court has not really confronted the issue.

This was a hysterical reaction, fanned by the reporting of the case. It has nothing to do with the real issue. Do you want to decide constitutional issues with opinion polls?

Why do you say that atheists have yet to come to grasp with this argument? Jefferson was a noted hypocrite on slavery. Most successful American politicans have been hypocrites to some extent.

Just look at the Constitution for goodness sake. There is no mention of God anywhere, and there is a clause forbidding the use of religious tests for office.

Your are reading later religious fervor back into the founding fathers. The Constitution was written with no mention of God. The phrase "under God" was not even in the Pledge until 1956 - how can that be historical tradition?

Right now you are rehashing a lot of issues that we have spent time on already.

Let me refer you to a good source on church state separation:

http://members.tripod.com/~candst/index.html