enfant terrible

In another thread, discussing Newdow v. U.S. Congress et al., Leviathan argues it was wrongly decided for several reasons, among which is that it contradicts the 7th Circuit's Sherman v. Community Consolidated School District No. 21. Obviously, that particular argument hinges on two critical assumptions: that Sherman dealt with the same question as Newdow, and that Sherman was decided correctly. Addressing this argument thus requires an analysis of Sherman.

I do not want to crowd the Newdow thread with a long and detailed analysis of Sherman, so I opened this thread specifically for the discussion of strengths, weaknesses, and implications, of Sherman. I thank Stephen Maturin for providing a link to the decision.

1. Introduction / Executive Summary

While I have only read the court decisions in each case, and not the petitions, pleadings and briefs leading to them, it does seem that the plaintiffs' claims in the two cases were virtually equal. However, the two courts interpreted and framed the questions differently, and that influenced the answers significantly, perhaps decisively. The Sherman court insisted on evaluating the integral text of the Pledge, with little emphasis on the 1954 change, while the Newdow court focused on the change as distinct from the pre-1954 text.

It should be said at the outset that much of the Sherman opinion consists of fine reasoning. There is relatively little to criticise in most of its parts I-III. Interestingly, it develops an argument that would be sufficient to reach the same decision as Newdow I, but then turns around and destroys it. The process of destroying this almost finished edifice involves two straw man arguments and one very blatant deductive error.

The first straw man turns the issue around: instead of analyzing a judgmental majority's distaste for a non-judgmental and non-aggressive individual, which is the issue presented by the case, the court discusses situations involving the offended individual's judgmental distaste for a non-judgmental and non-aggressive majority position. Naturally, they dismiss the validity of a constitutional claim in the latter situation, but it has no logical implication for the actual case.

The second straw man focuses on various examples of mentioning God in historic documents, political speeches, and ceremonial occasions. Had the text of the Pledge in its present form been a centuries-old tradition, and especially if that tradition had been self-perpetuating, without a law to codify it, the analogy would indeed have been persuasive. But the issue is a mid-20th century statute which changed the Pledge. There is no plausible analogy between this issue and examples like the Gettysburg Address.

The deductive error, in asking whether "under God" makes the Pledge a prayer, is so open and obvious that it is simply inconceivable that it could be anything but intentional, and I must attribute it to the chutzpah of a power-wielding court. The error has a very simple structure:
(1) If X, then A or B.
(2) Not A.
(3) Therefore, not X.
It does not take a rocket scientist to see the fallacy in this syllogism, but that is exactly the basis of the 7th Circuit's disposition of the issue.

I will address all these logical fallacies, as well as the methodical inconsistency I call "precedence-shopping", in more detail below. What follows is a step-by step analysis of the Sherman opinion, including comments on the general implications of that decision for future challenges to the "under God" statute.

In most quotations, I have omitted internal quotes and citations unless that would affect the integrity of the quoted text. All boldface and italics emphases within quotations are mine.

2. The Sherman Opinion: Summary and Background

In almost all matters of human interactions, and in law and politics in particular, the answer depends strongly on the exact manner a question is framed. The question, as identified by the court, strongly suggests the answer to which they eventually(?) arrived.

Such framing of the issue is biased and a strong indication that the decision is entirely result-driven. It is hard to tell, without seeing the actual complaint, how similar the plaintiff's claims were to those in Newdow; based on other parts of the court opinion, it seems they were similar, but broader in scope. But the question that the court chose to answer was definitely not the same.

This law seems to be the focus of the complaint (or at least of the court's disposition), rather than the federal law. Interestingly, in this respect Newdow II is more similar to, and thus more directly contradicting, this decision than Newdow I.

It is not clear from this whether the plaintiffs asked the court to set aside the 1954 law and whether that would have given them full relief. The analogy between the two cases is complete only if the answer to both questions is positive.

This is a very strange conclusion of the district court, if they referred to the 1954 act. Would the same judge say that the phrase "under no god" in the same place would (1) have no atheistic purpose, (2) not deter religion, and (3) not entangle government in issues of religious belief?

As we shall see, the 7th Circuit disagreed with this.

This is one of the major obstacles for Newdow: his standing as non-custodial parent will be challenged (and the Court more than eager to dismiss the case for lack of standing).

As the court correctly concludes below, the validity of this claim depends crucially on whether it refers to expression of patriotism or of religion.

3. Sherman: The Indisputable Part of the Analysis

If this is the correct reading of a part of the complaint, the court was correct to reject that part. Given the well-established law at the time IL statute was enacted, I would agree that this claim would need to be supported by evidence of actual coercion.

Correct reasoning.

This suggests an interesting idea: that the ideal plaintiff for a case to strike down "under God" would be a teacher rather than a student.

While most of this passage deals with technicalities of evidence (and seems completely correct), the emphasized part is important as it recognizes, at least in principle, that a student can suffer significant damages as a consequence of not saying the Pledge (or a part of it) even without any kind of intervention of the school authorities.

It's time for a break, so I quote these for fun only. The court properly expressed outrage at some of these statements:
Didn't a certain Arab with a mustache say something very similar and we invaded his country?
At least he was honest (if a bit misinformed).

Again, the court concludes:
It is clear that Sherman flatly rejected any argument based on formally non-compulsive nature of the statute.

By this point, the disposition of the case should be more than obvious. There is no sound argument that graduation prayer is in any way more compulsory religious exercise than reciting the post-1954 PoA, and there is all possible evidence that the opposite is true. The court properly continues:
About 1 yard short of a touch-down, and still running...
This is very well said: patriotism and religion are, constitutionally, in two entirely separate domains.

4. Sherman: The Controversial Parts

4.1. Straw Man I

By this point the court has practically reached the line. The problem is that it is not the result they wanted to achieve. Now they must somehow throw the game. This is where they begin to waver:
The essence of this argument is a fallacy: that the offense felt by exposure to secular teachings which incidentally clash with one's religious dogma is on similar footing with offense felt by being officially proclaimed an outsider on religious grounds.

How grotesquely distorted this argument is, I will easily demonstrate by substituting race for religion. It must be offensive for a white supremacist to be compelled to learn about accomplishments of people of other racial background, or how small the interracial genetic differences are, or how advantageous interracial marriages are for genetic diversity. But would the 7th Circuit judges consider comparing that offense with the one felt by a black student whose school class would start each day by reciting a hypothetical PoA with the words "...one white nation..."? They would probably find such a comparison as abhorrent as the two legislators' comments quoted above. So why do they use it freely with respect to religion?

The fallacy continues:
This grouping is patently wrong, for the reasons stated above.

Of course, private schools will have to teach most of those subjects anyway, if their graduates are to be successful when they apply for jobs or colleges. No one has the right to be recognized as a high school graduate just because he spent 12 years in school; what if the entire curriculum consisted of chanting "Om!" and trying to levitate? It would be ludicrous to claim that the public school curriculum is hostile toward religion or believers; it is simply neutral with respect to religion. But if that curriculum involved, say, "Aryan Studies", it would be preposterous to say that Jews can just go to a private school if they didn't want to take such a course.

Again, the court is creating a straw man in offenses created by the offended individual's judgmental distaste for a non-judgmental and non-aggressive majority position, while the issue before the court is the judgmental majority's distaste for a non-judgmental and non-aggressive individual.

This is, of course, correct in itself, but irrelevant for the case as it is an argument about the straw man.

4.2. Misapplication of Principle, Precedence-Shopping, and Defiance of Wallace

Now this is chutzpah! Note how the phrase "or other sign of religious devotion" disappears from the statement of principle to the question that is supposed to apply the principle! It cannot be called cheating when it is done so openly; it is pure power-wielding: "The hell with the principle; I am wearing a black robe and you are not!"

This is how the 7th Circuit applied stare decisis. The Lemon test was controversial and contested, so the judges guessed it might soon cease to be authoritative, and they avoided it. This is especially curious as their "pulling our leg" comment below argues precisely against this kind of speculation. In analogy to forum-shopping, this can be called precedent-shopping: among contested opinions with more-or-less precedential value, you choose to follow those that support the result you want to reach.

In addition, one of the Supreme Court Justices who have questioned the Lemon test is Justice O'Connor, and we will see shortly that the Sherman court did not apply her proposed endorsement test, either.

Again, this frames the question in a way directly opposed to precedent (and not even a controversial one). In Wallace v. Jaffree, the Supreme Court struck down an Alabama statute which specifically added "voluntary prayer" as a purpose for the minute of silence at the beginning of the school day in public schools. The minute of silence itself was not held unconstitutional:
(Stevens, J., writing for the Court.) In her concurrence, Justice O'Connor first explained in what way she would modify the Lemon test: A few paragraphs later, O'Connor points to the crucial distinction between statutes that mention or allow prayer together with secular purposes and the Alabama statute that made prayer explicit for no secular reason: In other words, there is nothing unconstitutional about the moment of silence facilitating other students' prayers: while they silently pray, you can silently think about sex or recite baseball stats, and no one will be able to tell the difference. You are not forced to choose between acting against your beliefs and openly protesting.

O'Connor is careful to note that this does not give states a blanket license to use a moment of silence as a disguise for sponsoring religion: Note how all the suspect elements are present in a typical recitation of the Pledge.

O'Connor concludes that some (and probably most) moment-of-silence laws are constitutional: But what about the statute before the Wallace court? This is what O'Connor wrote: The statute was unconstitutional because its only purpose was to introduce a religious element in an already existing exercise which had been neutral, i.e. it had in no way disfavored or deterred religion.

Isn't this exactly what the 1954 addition of "under God" did to the existing, religiously neutral, Pledge of Allegience?

But the Sherman court completely ignored O'Connor's line of reasoning and instead chose to consider an irrelevant category of "ceremonial references (...) to deity" and to examine whether they amount to prayer, even though their own and clearly stated principle made that question moot.

4.3. Straw Man II

Those are situations that are problematic, but they are rooted in tradition that predates the Constitution itself. This traditional aspect is absent in a mid-20th century insertion of God where He had never been before.

Actually, these examples only support the view that the 1954 act was unconstitutional. Suppose the Congress passed a law that said "The word 'God' shall henceforth not be uttered in the ceremonial call which opens the sessions of the Supreme Court." There could be a valid argument that such a law would violate the establishment clause, as it serves no purpose other than to eliminate the word "God" from a context in which it has been used in the British and American judicial tradition for centuries. (I wouldn't necessarily agree that this argument would outweigh the arguments for the opposite side, but it would be a perfectly valid argument.) But then surely the same argument is valid regarding inserting "under God" into the context where it was traditionally not used.

A mistaken and misleading example. DoI predates the Constitution and is not a law. In their proper context, these invocations directly counter those by the Crown. Also, in their time and place, those words served as an emotionally charged call to armed rebellion, so it makes sense that they appealed to deep sentiments of the majority. But to the educated they were also an expression of heresy, a challenge to the doctrine of established religion. Finally (and somewhat cynically), there was no rational basis for the concept of rights, so God was quite a natural choice for their source. The opening sentences of the DoI are multi-layered, and the court's superficial analysis trivializes them.

This is even further from the issue. How is an emotional political speech in difficult times to be compared with a law that prescribes the nation's values? How can such a law be justified by its similarity to a famous speech? Should United Kingdom pass a law that says that, from now on, the Government will have nothing to offer but blood, toil, tears and sweat?

This series of examples, mostly connected by important features not shared by the challenged "under God" - historic tradition, lack of legal authority, etc. - construct the second main straw man for the Court's constitutional arguments.

Of course. As I noted above, purging God from traditional phrases might be anti-religion rather than neutral. And old symbols need not change merely because they have religious roots. There are many examples worldwide - like the British and Scandinavian flags and national anthems of some East European countries during communist regimes - where such symbols caused no offense to non-religious majorities (or significant minorities), or even to states that officially supported atheism. But these are, like the examples invoked by the 7th Circuit, traditional, inherited symbols and texts.

To pursue this international analogy further: the judges would have us believe that "under God" in the Pledge is a lot like "In vain threatens the abyss of Hell" (orig. "Zalud prijeti ponor pakla") in Hey Slavs (Hej Slaveni), the national anthem of the former Socialist Federal Republic of Yugoslavia. If Hell was an acceptable representation of evil for a state that officially preferred atheism, surely God is an acceptable representation of good for a state that is neutral in religious issues. And this would be so if "under God" was inherited from pre-US history. But the issue is change of symbols, and the proper analogy from an atheist state is the removal of the Serbian national anthem God Give Justice (Boze pravde) after WWII. An atheist state removes God from where He's always been, and a theist (not neutral!) state puts Him where He's never been.

4.4. Ceremonial Deism And Leg Pulling

This was not one of Justice Brennan's high points. The historical fact that our Nation was believed to have been founded "under God."? What the fact!? Do other parts of the Pledge "merely recognize" historical facts? What is the purpose of the Pledge (or any pledge) anyway? Does merely recognizing facts belong in a pledge?

Even worse is his argument that the more interwoven such state-sanctioned "God" becomes with civil polity, the less of a First Amendment problem it poses. There is a saying that politics is like linguistics: an error made too many times becomes a rule. But one hopes that this would not spread to jurisprudence with the result that a violation that occurs too many times becomes legal.

It may be worth noting that Brennan was not talking about inherited pre-Constitutional traditions, so allowance for those, discussed above, does not apply.

Brennan did later modify his view:
Brennan may have speculated that God had become jaded and lost religious significance, but the public reaction to Newdow is an irrefutable empirical proof that such view is factually false. Anyway, neither Sherman nor the dissent in Newdow seem keen on the 'ceremonial deism' idea.

The famous 'pulling our leg' argument. As I already said, there is some heavy precedent-shopping here, choosing to follow dicta provoked by outcries of dissenters, but discarding the ruling precedent of Lemon just because, well, the current Justices might not like it any more and might some day overrule it. Can we find a superior guiding principle that reconciles those two approaches to precedent? The only one that comes to mind is "minimizing the likelihood of being reviewed by the Supreme Court." Especially if at the same time the decision is popular and, goddamnit, one We the Judges personally like. Dixi, et lavabo manus meas.

One judge was particularly weary of the 'ceremonial deism' argument:
Correct. If 'ceremonial deism' is all that saves an act from sinking in First Amendment seas, it does not save it at all.

Straw man II rides again.

A very good point.

This is all irrelevant, as it brushes aside the central issue - whether the addition of the words "under God" to the Pledge was unconstitutional. That the pre-1954 Pledge was perfectly constitutional is a no-brainer.

4.5. Degrees of First Amendment Violations?

It is true that in one aspect those practices seem to violate the First Amendment more than "under God" in PoA: they are not just religious (or have religious roots), they are also far more sectarian. While "under God" promotes any monotheistic religion, they promote a specific monotheistic religion. But that is an artificial and unjustified gradation. In both cases, a subset of beliefs is favored in some way. Does the size of the minority that is left out determine the extent of the violation (if it exists)? Certainly not. Constitutional rights are individual and the Constitution can be violated even if the violation affects only one person. A law discriminating against Blacks and Asians is neither a bigger nor a smaller violation of equal protection than a law discriminating against Blacks only. Thus the inclusiveness part of Judge Manion's argument fails.

The argument, as I read it, has one more part, and that is the extent to which the content is religious. He seems to assert that prayer and nativity scene are more religious than "under God". But how would we measure that? Clearly all three have religious content; but what would make one more or less religious than another? This seems entirely subjective, as religious judgments naturally are (which is, by the way, one of the reasons we have the establishment clause).

I will avoid discussion of Christmas nativity scenes. Suffice it to say that poor taste does not imply a constitutional violation. But I will provide several arguments that prayer, and legislative prayer in particular, infringes upon First Amendment rights more than recitation of the current Pledge of Allegience.

I have not seen many occasions, outside closely-knit congregations, in which everyone is expected to join in prayer. Americans are used to socializing with people of different denominations. If the person next to you is not praying with you, he might just be of different creed that does not use that prayer. Or he may not know the words. Or he may just prefer to pray silently, following the words of Jesus: "But when you pray, go into your room, close the door and pray to your Father, who is unseen." (Matthew 6:6) There is no reason to suspect that the silent guy is an atheist, or that his silence is a form of protest. Thus it is difficult to argue that social pressure creates compulsion to pray. Even standing up to silently participate in prayer hardly compromises an atheist's beliefs. There is nothing hypocritical about standing out of respect for other people's sacred symbols; it is, for example, normal in public occasions to rise for the national anthem of a foreign country. Thus, no one is forced to choose between insincere participation and active protest.

With legislative prayer, it is hard to argue that those who are exposed to it suffer any actual damage. All legislators are adults, so most arguments that apply to impressionable children cannot apply here. Virtually all legislators either are religious, or claim to be in order to get elected. It would be hypocritical of an atheist to pretend to be religious until elected, and then claim to suffer injury from compulsion to compromise his beliefs. Of course, the need to pretend is a consequence of very troubling social prejudice against atheists, but that prejudice is not caused by legislative prayer and is hence a completely separate issue. And those rare legislators who are openly non-religious can hardly complain that they must choose between participation and protest: as politicians, it is a regular part of their job to publicly stand against what they oppose.

5. Conclusion

This is not to say that I think it appropriate for the state to sponsor prayer and religious exercises. I agree with all Supreme Court decisions against school prayer and government-sponsored religious displays, and I have a hard time understanding how legislative prayer can possibly be constitutional (i.e., I disagree with Marsh v. Chambers). But I think the main reason some of those ceremonies violate the First Amendment is the indirect damage they choose - the undermining of the credibility of constitutional principles and the rule of law - rather than direct damages to particular individuals. With respect to the words "under God" in the Pledge, that indirect damage is present as well, but so is a direct damage to individuals. And it is the individual that the Constitution was meant to protect from arbitrary rule of Authority. The Sherman court failed to give this a serious enough consideration, and it reached a wrong decision.

Leviathan

I am really tired of my crappy 56k internet service. I had a whole answer, typed out, and 15 minutes before I get to the bottom, disconnect, and I lose my reply.

In sum of that post, let me just say that although there are parts of Part I and III of the Sherman opinion that you leave out, which I believe hint at the reasons for why they find no psychological coercion to be the case, I believe the court supports its holding enough in Part IV, to not require such a painstaking analysis of the entire decision. If you want, I can cite you to the passages you leave out, and we can discuss those, but I really don't find it necessary.

Tell you what, I'll cite them, and if you want something to do with them, you just tell me.

Sherman, 980 F.2d 437, 439, you leave out a sentence citing Palmer, in which the court suggests that it finds the Pledge to be one of "communicat[ing] partiotic values to their students." I believe that gives this court some precedent in claiming the Pledge is a patriotic/political act, and not a religious one.

Sherman, 980 F.2d 437, 441, in answering your proposition concerning standing, just make note that here, unlike in Newdow, the parent had standing as the child's lawful guardian. In contrast, Newdow does not have custody of his child, correct?

Sherman, 980 F.2d 437, 441, "Plaintiff's maintain that having the Pledge led by the principal daily is inherently coercive and therefore violative of plaintiff's rights." This helps us discern that the legal issue at present in Sherman is the same as the one in Newdow. Also, given that Newdow isolates that Sherman decides the same legal issue as present in that case, your argument that the framing of the issue warrants the conclusion that the court was "result-oriented" is arbitrary.

Sherman, 980 F.2d 437, 442, there is a citation to Oliver Wendell Holmes, concerning the "penalty" of not following the law, and in that paragraph, one you leave out of your citations, the court isolates that the Pledge of Allegiance is a "task of civic virtue." This just goes, again, to show that the court here finds reasons for substantiating the claim that the Pledge is a political act, not one of religion. Additionally, this shows why the Seventh Circuit phrased the issue the way it did: in that the teachers have a "civic duty" to lead their children in the Pledge, but not all children have to say the Pledge if they don't want to. *But*, allowing a child to come to court and find the 1954 Pledge Unconstitutional, would destroy the rights of *all* individuals to say the Pledge. Thus, *that* is why they frame the issue in different words than newdow, *not* because they are result oriented, but b/c the law of the Seventh Circuit warrants such a finding. The "civic duty" decision is the Palmer decision that I believe you correctly cite to.

You will note that "children" can be cruel, in presenting such psychological pressure. Does that mean the state is the one that brought that pressure, or it was the children?

Yes, the court denied any psychological coercion argument, as being against the law of the 7th Circuit.

The psychological coercion argument is definately the center of this case, though of course I disagree on the lack of argument. Your citations to Part III fall vastly short of what they *should* be, to show the proper analysis this court is giving.

You correctly cite the fact that the court says that religion and patriotism are seperately in their domains, what you incorrectly find is that the court is properly finding the Pledge to be an act of patriotism, instead of an act of religion.


Why is that a fallacy? I see this argument, cited by precedent in Lee, as sound. By the time seniors get to their last year of high school, they have clashed their own ideas with so many numerous other ideas, that the collision of those ideas means they are not coerced by anything in their education.

Furthermore, the court's decision reasons that since anything the school teaches will offend "someone," the egg-shell plaintiff cannot find recompense in the law, since everything would be invalidated. Nothing about evolution could be taught, on the grounds that it would offend "someone's" religious ideas. The court explains this argument by summarizing, "It would extend to the books, essays, tests, and discussions in every classroom."

Your comparison to race is just another example of the "egg-shell" plaintiff argument I'm making above, as the Court would be forced to listen to such nonsense under such a holding as you would want.

Additionally, don't you find it problematic to liken to race, given this statement: "Consider what a general assimilation of religion to patri- otism and other values would mean for the public schools. " I do not believe the two words are interchangeable, as you stipulate.

This statement makes sense to me: objecting to a part of the state's curriculum, which is not a religious endorsement (read "civic ceremonies"), is only wishing to ask for accommodation before this Court, when that Court cannot provide a remedy.

Enfant finds, "This grouping is patently wrong, for the reasons stated above." I find no such warrant for an argument. The Court's argument is further explored, in the subsequent sentence, "Humane government often calls for accommodation; programs such as tuition vouchers serve this interest without offending other constitutional norms." Thus, "humane" government would require the dismissal of appellant's claim, as there is no remedy this court can offer the plaintiff. The court finalizes its opinion in part III, by saying any plaintiff has the right to go to a private school, where the civic education is to the plaintiff's liking.

You make the wonderful comparison to Nazism, " But if that curriculum involved, say, "Aryan Studies", it would be preposterous to say that Jews can just go to a private school if they didn't want to take such a course." Learning about Nazism is a part of history. Period. A court wouldn't have to tell Jewish students to "go to another school," b/c of that. If you object to learning about the curriculum set out by the state, you have the right to private education. Knock yourself out, but don't come to court saying that your "rights" are being infringed, b/c your rights could be at the expense of everyone else's right to learn history.

There is no straw man argument here. Following the precedent of Piece, the Court stated that petitioner has the right to go to private school, if they object to the curriculum as taught by the democratic majority. Unless that curriculum is offensive to the Constitution, (which it isn't: its a civic action), then you have no right to petition the court for a remedy. Simple enough.

Wow, the court is saying they don't see the pledge as a prayer. Gosh. You state that they are "defiantly" ignoring the "principle." This is preposterous. The court was merely saying that the Pledge is distinct from prayer or other religious symbols of devotion, as they had previously noted a "moment of silence" or "reading scripture." All you have stated is a confusing statement, talking about a principle and the question concerning the principle, but you have not simply explained how this is a violation of precedent.

The Lemon Test has been criticized by *numerous courts.* Period. Nothing left to say. Its funny you do not cite to all the authority they present in that paragraph, supporting their proposition. Someone's willing to hang the Seventh out to dry, while not precenting their precedent for their findings.

You will also note that the district court found the law passed Lemon Test scrutiny. Courts do not review the findings of a district court unless they are "clearly erroneous." Thus, why analyze something that has already been found to pass the test, which is questionable to say the least?

This is the very issue in front of Newdow. How you see that as "result-oriented" is beyond me. There is no framing it in "opposition" to precedent. You will notice that Wallace is distinguishable on the grounds that the only thing found unconstitutional was the "voluntary prayer." The state was sponsoring a prayertime, and while it was voluntary, it merely couched it in terms of a prayer. Justice Steven's opinion clearly finds this an attempt to "back-door" religious motives into the public sphere. There is nothing wrong with that.

Additionally, PartIII of the opinion answers your criticism here. If you will note, after directly citing Wallace, along with other cases, the court discusses the impact of "penalty" on that of the law, and how people supposedly follow the law predicated on the democratic majority alone. Stevens merely stated the amendment, as passed by the legislature of AL., didn't further any secular interest in preserving the plaintiff's right to freedom of expression, anymore than the original law. I fail to see how that shows the legal issue here was wrongly framed. The legal issue in Wallace was not "is the Pledge Unconstitutional?"

Your lengthy recitations of O'Connor are for the most part correct. What I am sitting here scratching my head about, is how your entire analysis operates on the following assumption, "The Lynch concurrence suggested that the religious liberty protected by the Establishment Clause is infringed when the government makes adherence to religion relevant to a person's standing in the political community. Direct government action endorsing religion or a particular religious practice is invalid under this approach because it "sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community."

Justice O'Connor has clearly stated, *clearly stated* that she does not find the Pledge of Allegiance to be an endorsement of religion. Thus, the entire "political community" argument does not apply. Not at all.

No, it isn't. The statement of "under God", according to O'connor, has secular purposes that all of your lengthy citations overlook. I have quoted that citation numerous times in other threads: the central question, and one you are avoiding, is does the words "under God" operate as a religious utterance? It doesn't, no court has found such (save N. of course), and thus, although your understanding of the law is correct, and you've done a fine job exhibiting that understanding, you've missed this key piece of the puzzle.

Just b/c you dismiss it as "irrelevant," does not make it so. That line of argumentation has gone all the way back to Engel, and just b/c you're motivated to criticize the court for looking to that precedent, doesn't bring any force to your argument.

Additionally, your logical, syllogistic approach to this issue might want to answer the following:

Good argument.

Regarding the oath taking, your argument honestly makes no sense. The court is merely recognizing that the giving of oaths has been tradition in this nation forever. Madison and Jefferson recognized such a history. Your hypothetical assumption of an absurd law has no bearing on the constitutionality of *this* law. Examining the history of this nation only supports the argument more that the founding fathers saw the importance of religion, and denied a strict seperationist theory that you are implying.

Who cares if its not law: it was the document which declared our independance. Jeffersons' letter to the Danbury church isn't law, yet its cited in almost every modern establishment clause case. Citing the DoI shows that, contrary tobeing "emotionally charged" (my God, insert your bias please), the founding of this nation was with a strong view of God as granted of freedom. You can analyze the DoI all you want, attacking the "credibility" of why they stated God bestowed rights, but they have nothing to do with the force of the court's argument here. The court's argument, contrary to your mere assertions regarding the DoI, is that the history of this nation warrants a finding that unless we find the FF's hypocrites, we cannot interpret the EC the manner in which you want it to be.

Once again, please show your bias, I'm not seeing it. The speech at Gettysburg recognized the same thing that was present at the DoI, at the Constitutional Convention, and in 1954: that God is a part of the establishment of this nation. Finding "multiple references" to God in the DoI, and in Lincoln's address, the court is supporting the jurisprudence of the EC that finds that although the wall of seperation is high, it is not insurmountable. Your arguments, and your "emotion" find that it should be completely seperate. No such court has *ever* made such a finding.

Additionally, you do not cite to all of the sources that the court does, in supporting these legal arguments. Thus, your analysis of these arguments might be served to refer to those footnotes, before making conclusions.

Does all this have *anything* to do with the limiting argument the court is making, citing Engel? How about Lynch? O'connor? Brennan?

You correctly find that purging God from "Traditional phrases" might be anti-religion. Do you not find "under God" to be one of those, given the legislative findings at 4 USC 4, which cite the DoI, Mayflower Compact, and Gettysburg Address? I believe that's the extent of my argument, and I can sit on it right now.

It seems even the seperationist stalwart Brennan saw the credibility of "history" in the First Amendment.

The other parts of the flag do recognize historical facts. This nation was founded on liberty, etc. Why do you think the Pledge is said in the school

Leviathan

Unless I misunderstood your argument as only speaking to the concurrence, I believe you're mistaken in arguing that the majority decision did not take its authority from the "ceremonial deism" argument from Engel. It very well did.

DePaul Law review, just reviewing the 7th Circuit's cases for the year. 43 DePaul L. Rev. 673

enfant terrible

OK, let's start with a general comment:
And so on. It really shouldn't be necessary for me to say this, but just in case you are unaware of this custom: If I did not quote something, you can assume that either (1) I agree with it, or (2) I don't find that commenting on it would add anything that I haven't already said clearly enough. This holds for all "forgotten" citations. If anything, I was overinclusive; if I had written this as an article, I would have pruned the citations considerably.

I will thus not respond individually to your comments about omitting citations. But where you cite specific passages from Sherman which I have not cited, I will comment on them to the extent that I disagree either with the passage or with your interpretation. So if I say nothing about them, you know I agree with them.

The essence of the Pledge, taken as a whole, is patriotic. No one claims anything to the contrary. Neither plaintiff (Sherman or Newdow) challenges the original Pledge in any way. They only challenge the words added to it later.

I made no "proposition" concerning standing; I merely noted (in several instances) that it will be one of Newdow's bigger legal problems. I do think he has standing, but I also think it is an area where a lawyer's technical skill and experience can be critical for the outcome.

As for the substance of the argument, a non-custodial parent is still the child's legal guardian. Thus, nothing in Sherman implies any lack of standing for Newdow. But it is also not specific enough to actually imply standing. I don't know more about that issue.

(To be continued...)

enfant terrible

(Continued)

Just to add on the issue of standing, Michel Newdow does not claim just derivative standing, as he does not claim that only his daughter's rights are violated. He also claims his own rights are violated, and in that respect his standing is not derivative; but the other side will move to dismiss for failure to state a claim. They did so successfully in the District Court with respect to the entire case. (Note that the District Court's decision clearly contradicted Sherman.)

No, it does not help us answer that question. The Court does not say that it is the plaintiff's only claim (and it is not, as is obvious from the rest of the opinion). It is also not the only claim in Newdow. All we can conclude from this quote is that there is some overlap. I have recognized a lot more similarity than that, so this is redundant.

You read too much in what Newdow says about this. They just say that Sherman "consider(ed) the issue". This does not yet mean that it "decide(d) the same legal issue", and Newdow explicitly states that Sherman's framing alters the central legal question:
While you are free to supply counterarguments to my claims and to those of the 9th Circuit, you may not say that the 9th Circuit and I disagree on this particular point.

This is an issue I have addressed, and this citation adds nothing new. However, your interpretation contains a logical fallacy as it contains an assumption that an act is either political or religious, but cannot be both. This exclusivity is not only arbitrary, but obviously counter-factual. Without that assumption, however, your conclusion makes no sense.

This is true only if you define "the Pledge" to refer only to the post-1954 text, but not to the pre-1954 text. So what?

If the 1954 Act is unconstitutional, it necessarily follows that the 1942(?) Act defines "the" Pledge, so the only meaningful definition of "the Pledge" is its pre-1954 text. Then, if a state law or other rule says that "the Pledge" will be recited, it means that the original (and only, once the 1954 Act is set aside) Pledge will be recited. "All individuals" are then just as free to add "under God" when they recite the Pledge as they are to add any other words, e.g. "...the rich" at the very end of the Pledge. It would depend on the local rules and policies how such individually adapted Pledges would be treated. (They would likely be tolerated unless they are disruptive.)

The 7th Circuit parenthetically remarked (and I duly cited) that they did not think it was the state. However, this is at odds with Justice O'Connor's establishment test in Wallace. As I already quoted, she wrote:
and, more specifically:
If a child is bullied by other children for being an atheist, it is a violation of the child's civil rights. That alone would be enough to hold the other children's parents and the school (if bullying happens during school hours) liable. But if the bullies are motivated by the belief that they are favored members of the political community and the State has contributed to that belief, then, by O'Connor's reasoning, the State is also liable. So the 7th Circuit's parenthetical remark is at odds with Wallace.

I did not originally attack that remark, as it is insignificant. But, since you asked for it, I gave my thoughts on it now.

I don't quite understand what you are saying here, so I'll try to interpret it in the context. Your first sentence follows a citation from Sherman which says that coertion is not excluded just because there are no direct penaltes. I would probably call it an acceptance of psychological coertion arguments (PCA for short), but you can conceivably define PCA to make your sentence work. But it is still hard to reconcile that with the following statement that PCA is the center of the case; that makes sense only with my understanding of PCA. But I don't know what argument is not lacking in your opinion. I also don't know if you disagree with me, the 7th Circuit, or both. I'll just have to ask you to clarify this, if it is relevant. If it does not affect the discussion significantly, we could just drop it.

The way you stated this is simply not true (for I did not find the court's finding proper), but I have a feeling that you wanted to say something else. Instead of guessing what you really wanted to say, I'll let you restate it.

You erroneously paraphrased me. Please don't do so in the future.

(To be continued...)

enfant terrible

(Part III)

To my argument
you respond:
This is not a counterargument. I already explained why it is a fallacy. You can counter that by giving reasons that it is not, by explaning why it is sound. Merely saying that you see it as sound amounts to nothing. And no better is merely repeating the court's argument.

Are you seriously implying that "...one White Nation..." would be constitutional, and that one bringing a claim against it would be an "eggshell plaintiff"? Or, if that is not what you are saying, what are you? This is the only way I can understand your comment as criticism of my comparison, as I was juxtaposing (what I thought were obvious cases of) an "eggshell" plaintiff against a fully justified one.

First, analogy with race is motivated by the fact that race and religious belief are on approximately equal footing in American society as proscribed discrimination categories, and are, in that respect, higher than other categories. (E.g., those two always trigger a 'strict scrutiny' equal protection analysis.)

Second, there is no problem at all with the statement you quote. Race can be substituted for religion with similar consequences. You are, hopefully, aware that the military used to be segregated and colored people had almost no chance of having roles with high responsibility, and hence little chance of becoming war heroes; there is one real-world example of mixing race with patriotism. The only difference is that, unlike race, you can change your beliefs, but that has never been an acceptable defense of religious discrimination or persecution in this country.

You are probably the only reader who misunderstood what the subject "Aryan Studies" was supposed to be about. Hint: it was not about history. Hint 2: Would it be clearer if we renamed the subject to "Why Aryans Are Patriots And Jews Are Not"?

The only thing that is simple enough is that you are making a circular argument. Whether the "curriculum" (if "under God" can be called so) is constitutional is precisely the question the court is supposed to answer. Its reasoning cannot include the opinion about its constitutionality among its premises.

Now you are making a straw man (or men): to my subsection 4.2, which is probably the most obvious condemnation of Sherman's reasoning, you answer:
Let's see what you are doing. First, you completely ignore the court's deductive (syllogistic) fallacy. Of course, I cannot compel you to try to refute my argument, but if you don't, you cannot hope to save Sherman. That fallacy alone is sufficient to invalidate the result. I'll remind you: the court first says that "everything would be different" if A or B, then it proves (perhaps) "not A", and concludes that nothing is different. From the context and language usage, it is clear enough that the "if" in the text actually means the logical "only if". But that still requires examination of proposition B, which the court avoids. Thus, the court cannot draw any valid conclusion in Part IV. Even if you could somehow refute my claims of other fallacies or prove them irrelevant (although you haven't made any progress on that), the court's result would still be unfounded as long as this fallacy is real. Other errors in the opinion are serious, but this one is fatal.

Then you misquoted me: I did not "state that they are 'defiantly' ignoring the 'principle'." You made this up. While your offense is not particularly relevant in this instance (I could probably agree with such a statement somewhere in that subsection), it is nevertheless a serious offense in a debate. Earlier, I asked you not to mis-paraphrase me; but misquoting is far worse.

Then you misinterpret what the court was saying; as I have, by now, hammered in from several angles, the court avoided examining "other signs of religious devotion"; it only considered whether the Pledge is a prayer. If you claim that they actually considered "other sign(s)", show me where they did so!

As to your last sentence, which of my statements is confusing? You did not quote me (although you attributed the quote to me - another misquote, which I will benevolently interpret as a mere lapsus calami), so how can I know what you are referring to? Could be almost anything in 4.2.

The last sentence does seem honest. Lemon can be criticized by every court in the country, it can even be outright wrong, but at the time of Sherman it was - and today still is - authoritative. The Supreme Court never abandoned it, so it is the law. Newdow criticised the Sherman court for defying stare decisis; I was actually milder. I would be willing to turn a blind eye on this if only their approach were principled - if they ignored all 'dubious' precedent. But, as I explained, that is not the case.

This would make sense if the 7th Circuit simply deferred to the District Court, as would be the normal reaction to an argument that they don't find clearly erroneous. However, that is not what they did. Instead, they bent over backwards to avoid Lemon altogether. Your question is thus properly addressed to the 7th Circuit, not to me. But, as they are unlikely to join this discussion, I'll propose an answer and we can see if you agree or propose an alternative one:

The 7th Circuit found the District Court's application of Lemon "clearly erroneous" to put it very, very mildly. For possible reasoning behind this finding just see Newdow. This would, however, work against the result to which they were leaning, so they did not want to pursue this issue. As they could not in good faith defer to the District Court's finding, they needed to come up with another approach and, of course, a reason for such a change of lanes.

If you propose a different answer, there is one rule you should obey: you may not imply that the 7th Circuit's action is meaningless; e.g., if they agreed with (or simply find grounds to defer to) the District Court, why didn't they just say so? You may not claim they had no reason for their acrobatics; that would be disrespectful to them.

I assume you mean Sherman. Anyway, you are not supporting your claim with any arguments. Again, the second sentence does seem honest.

I will most definitely not "notice" any such thing. If it were true, then most other moment-of-silence statutes would automatically become unconstitutional under Wallace - just like this year all anti-sodomy statutes became unconstitutional under Lawrence, not just the one in Texas. But that was clearly not the effect ofWallace, and Justice O'Connor explained why. And I have already said all I had to say about that.

I fail to see how you can possibly be serious when you make such an argument. Are you implying that you can only compare the reasoning in two cases if the legal issue is identical in all its particulars? Are you denying analogy any part in legal reasoning? Do you not understand that two issues which differ in some particulars can nevertheless have a "common denominator", i.e. belong to the same category?

If you are not trying to say any of the above, then perhaps you can explain what secular purpose, not already served by the original text of the Pledge, is served by the 1954 addition of the words "under God".

What do you mean by "for the most part"?

She has not explained how that finding is to be reconciled with her principled analysis and other Court decisions. If her dictum in a footnote on a particular issue appears to contradict her principle discussed at length in an opinion with udisputed precedential value, and no explanation of the contradiction has been offered, I will rely on the principle.

I suppose you will argue in favor of the particular, and it is conceivable that, at a purely philosophical level, the argument does not have a clear resolution. But we are not arguing about pure philosophy; we are arguing about jurisprudence. There is no doubt which of O'Connor's statements has stronger precedential authority. It is the one in the opinion, that deals with the question central to the case in which it was issued.

If it does, give an example. Find one secular purpose of those words. You may quote Justice O'Connor, another judge or legal expert, a layperson, or you may think of one yourself. I don't care about the source (in other words, don't tell me that 4 out of 5 dentist's attorneys think so), I just want to hear one such purpose.

That's 1 out of 2. It is equally correct to say "It does, every court has found such (save S. of course)." And equally incorrect.

I don't "just dismiss it", I devoted the entire subsection 4.3 to debunking this straw man.

What exactly do you want me to answer? In what way does anything in this statement add to the arguments I already answered?

Besides, Kennedy's opinion is a dissent, and thus has no precedential authority.

So then what "makes no sense"? I said the same thing.

Why? In which way (other than whom they favor) are they different?

You are mixing apples and oranges. The latter is cited in order to clarify the meaning of the establishment clause - whether on historical and linguistic context grounds, or on the "framers' intent" grounds. You can make no similar claim of the former; the court lists it as an example of "ceremonial references to God", not as a help in interpreting constitutional text. And it makes a big difference whether it is a law or not, because the court is directly comparing it to a law whose constitutionality it is evaluating.

The rest of your passage about the DoI, to the extent that it is intelligible, is not pertinent to the discussion, so I will not waste bandwidth to parse your misinterpretations of my statements.

Well, thank you. You are not seeing it because it is not there.

This claim is too preposterous to deserve any answer unless you can back it with some serious argument. You directly contradict the First Amendment.

What finding? You are only talking about metaphors. There is no substance in your statement. Courts do not decide on metaphors.

One of "those" what? You are unclear. If you refer to "traditional statements", then it clearly is not. Even you will not deny the fact that it was added in 1954. 49 years does not normally constitute a national tradition, and even if it did, there is no legal doctrine under which a statute which was unconstitutional when enacted could become constitutional through mere passage of time, without changes in the Constitution in the meantime. If, on the other hand, you refer to "purging God", then it is similar to a mirror image of those, so a qualified yes.

What facts? The only example you try to give is patently false. "Liberty and justice for all" cannot by any stretch of imagination be called a "historical fact", especially not when referring to the Nation's founding. Ever heard of slavery, or of treatment of Indians? But, on the other hand, they can properly be called the Nation's ideals or core values. And that is what all pledges are about. No one pledges to historical facts, it would be meaningless: facts are facts, whether you love them or hate them. But ideals are preserved and advanced through devotion. So the Pledge is an officially codified statement of the Nation's ideals or core values.

Therefore, the meaning of the 1954 Act was to add belief in God to the officially sanctioned core values of the USA. If this is not "an establishment of religion" in the strictest possible sense, what is?

enfant terrible

Please note that I will not have time to post anything here for at least a week. My temporary absence will not mean that I am ignoring the debate, nor that I have abandoned it.

Leviathan

Absolutely, I as well will be busy this week, and will be waiting until I get my nice cable internet service at college, before I make another substantial reply (only to have it erased by losing my connection!).

Nice debate.

Worldtraveller

Ok, while the legal big guns are busy, maybe I can Hijack this thread!! j/k

Actually, I have, what I consider to be a simple, non legal argument type question that maybe one of you can answer. This has been asked in various forms on a few other threads, but it keeps getting brushed aside.

If "under God" in the PoA, and "In God We Trust" on the currency is a "secular, historical statement" (to paraphrase), then why is it that only the religious right, with all of thier political clout seems to be fighting tooth and claw to keep it in there? There are not large groups of Muslims, Jews, or any other religions that feel we have to include these non inclusive words into our daily lives. As a matter of point, there seem to be many Christian affiliated groups who side with Newdow, at least in principle, in that the aforementioned phrases seem to violate the first amendment intent.

The de minimus (sp?) and "ceremonial deism" arguments seem to fall short short in light of the support for leaving the offending phrases in place, forgetting for a moment the obvious offensiveness to the alternately or non religious groups in this country.

-Lane

Toto

The only authoritative answer I have is that it's spelled de minimis, and I know this not only because of high school Latin, but because I once wasted a lot of time trying to find a document that misspelled it the other way - warning if you do a key word search.

I think the ceremonial deism argument is a leftover from the Eisenhower era, when very few people admitted to actually taking religious seriously, but still wanted to knock on wood or avoid being struck by lightening because they somehow displeased the Fates. It obviously doesn't fit the current political situation, when people who say they think that God lifts his veil of protection because we don't follow his rules on sex wield real political power.

Back to the main topic.