hezekiah jones

If anyone has a link to, or information regarding, substantive criticism of the Ninth Circuit's opinion, I would appreciate it. I have heard or read absolutely none.

I just finished watching Sean Hannity and Laura Ingraham, an alleged "constitutional attorney," debate [sic] a dude from American Atheists. The best Hannity and Ingraham could come up with (aside from continually interrupting him to spout their stock inanities) was, "Get over it." And this from the people that lost the decision!

Anyway, who has heard on point criticism of the opinion?

Bill

First, you can read the decision of the 9th Circuit for yourself.

Second, it is important to note that the two judges who were in the majority for this opinion are not "regular" judges on the 9th Circuit. (I presume that they are "Senior" judges, which means that they are semi-retired, with a lower caseload). The key point here is that only the dissenter, Judge Fernandez, gets to vote if this case goes up for an en banc ruling by all eleven "regular" judges of the 9th Circuit.

The fact of the matter is, though, that the majority opinion is the better reasoned opinion. Judge Fernandez simply wants to declare that "under God" is a de minimus reference to religion that can have no ill effect on our society as a whole. He writes this: The above comment seems to ignore the idea that these are impressionable young schoolchildren. Their religious ideas are getting bashed on a daily basis by a government committed to "ceremonial deism" (or some such concept). Judge Fernandez doesn't make any real legal counter-argument that is pointed at this wrong (which Newdow seeks to have the courts right).

The majority opinion goes through what I would believe is the proper legal analysis. The introductory paragraph sets forth the appropriate legal test for the school setting:
One of the most telling sentences of the majority opinion is where they quote from Lynch v. Donnelly, 465 U.S. 668, 694 (1984) (O’Connor, J., concurring): What can be more of an endorsement of religion than to force nonadherants to recite "under God" as part of their Pledge of Allegience to the United States? Think of what atheists who wish to become citizens must go through when they agonize over the requirement to recite the Pledge or fail to obtain citizenship. Once they are citizens, they have the right to avoid saying the Pledge, but Congress has made reciting the Pledge one of the absolutely mandatory steps in order for anybody to obtain naturalized citizenship.

The majority opinion goes on to note that there are (as noted above) three separate tests for evaluating whether or not some particular act of the government fails First Amendment scrutiny. The majority opinion goes through all three possible tests and finds that it fails in each instance. Any single failure would be sufficient for the court to invalidate the governmental act in question. The fact that the majority opinion finds that all three tests fail leads me to the conclusion that it will be really tough to create a legitimate legal ground for overturning this majority opinion. (Of course, the U. S. Supreme Court demonstrated that it doesn't need legitimate legal grounds when it decided the case of Marsh v. Chambers, 463 U.S. 783 (July 5, 1983), where they basically said that prayers were always used in Congress, so the practices of the Nebraska legislature had to be OK under the First Amendment.)

Now, we come to the part of the majority opinion that has been widely excerpted for quotation purposes; the part that analyzes the 1954 law under the "Endorsement Test" originally created by Justice O'Connor:
Frankly, I don't see any logical way to rebut the above analysis. Which is probably why you don't see any reasoned attacks on this decision by legal professionals. You get folks like the dissenting Judge Fernandez who assert that this is a de minimus endorsement; or ceremonial deism (which the Supreme Court has repeatedly authorized). But you don't get any real refutation of the above analysis, which is exactly on point for the public school context where children of the youngest and most tender ages are having God-belief crammed down their throats (and I have personal experience with this since my boy went to Kindergarten all last year and was asked to recite the Pledge each day).

And if you are wondering just how the Supreme Court might evaluate this same case, one of the two swing votes, Justice Kennedy, has already decleared himself, writing in the Allegheny case: I thus feel that if this case makes it to the current members of the U. S. Supreme Court, both Justices Kennedy and O'Connor would vote with the majority opinon of this 9th circuit panel, and that would make it a six to three decision to invalidate the 1954 act adding "under God" to the Pledge.

But that's just my personal analysis...

== Bill

hezekiah jones

Oh, I've read it alright!

Goodwin is a Senior Circuit Judge, yes, but both Reinhart, who signed on to Goodwin's opinion, and Fernandez are regular Judges.

Here is a complete list, with biographies, of the entire Ninth Circuit (as well as the California Supreme Court and State Courts of Appeal):

<a href="http://www.appellate-counsellor.com/profiles.htm#Circuit_Judges" target="_blank">California Judiciary</a>

In <a href="http://iidb.org/ubb/ultimatebb.php?ubb=get_topic&f=59&t=000271&p=11" target="_blank">another thread</a>, Bluenose outlined the procedure for an en banc hearing:

When a petition for rehearing en banc is filed, all the Circuit judges vote on granting the petition. If granted, all of them hear or review the panel action and then vote again. They can rewrite the panel decision, or just affirm or reverse. En banc is rarely granted by the Ninth because of the size of the load each judge has to deal with. But they can do it all on paper without additional argument or pleadings if they want to close ranks to strengthen the panel ruling.

In the same thread Stephen Maturin provided the following Ninth Circuit FAQ:

<a href="http://www.ca9.uscourts.gov/ca9/documents.nsf/92f189376da994a0882567dd00617f3f/674c8c01d0f4ee63882566d3007e6a70?OpenDocument" target="_blank">Federal Rules of Appellate Procedure</a>

I have no doubt about that. I also very much appreciate the fact that the challenge here passes every establishment clause test currently in effect.

As you know the Supreme Court handed down its school voucher decision yesterday. I had expected the Court to repudiate the Lemon Test in that opinion, but it did not. In fact Lemon's most vociferous opponent, Justice Scalia, did not write any of the opinions. My suspicion is that had Rehnquist given Scalia the opinion to write, Kennedy and/or O'Connor may not have been persuaded to sign on to it.

(Thomas, on the other hand, wrote a concurring opinion, which no one joined, that contains the rather bizarre suggestion that the 14th Amendment should not incorporate the establishment clause against the states to the same degree it restricts Congress.)

The point is, had the Supremos invalidated the Lemon Test, the Ninth Circuit's opinion would have been undermined to a certain degree. But they did not.

It appears that they would have to. Another of the more telling citations in Goodwin's opinion, and this is key, I think, is from Kennedy's dissent in Allegheny, in which Kennedy specifically refers to the Pledge and how atheists are excluded from effective participation in its recitation.

I don't see how Kennedy, for one, is going to get around that if an appeal reaches the Supreme Court.

And I agree with it wholeheartedly. Thanks for your excellent post.

What I was asking for, however, and I should have been more specific, was criticism of the opinion that supports the apparently pervasive view that it will be overturned. I am at a loss to understand how, despite the sanctimonious grandstanding in the U.S. Senate and elsewhere. Critics of the opinion, as far as I know, have been unable to provide any attack on its reasoning thus far.

If anything could possibly shake (at least a portion) of the public's confidence in the judiciary more than Bush v Gore, it would be the overturning of the Ninth Circuit's decision on purely emotional and/or political grounds. The federal judiciary is supposedly impervious to these concerns, and, I hope, is the last bastion of reason and objectivity in this country.

Although I wasn't around when school prayer was declared unconstitutional, I suspect the firestorm of protest was similar to what we are seeing these days. However, those rulings have certainly stood.

Once again thanks for your excellent reply.

[ June 28, 2002: Message edited by: hezekiah jones ]</p>

Jamie_L

Funny, if the phrase "under God" has such minimal significance, thus allowing it to be legal, why are so many people so upset about it. Seems like it's pretty significant to them.

Jamie

hezekiah jones

Yes, that's another good point, this "ceremonial deism" business. In order to overturn this decision, its opponents are going to have to actually downplay the significance of this particular reference to "God." In fact the degree to which they need to downplay its significance is directly related to the strength of the opinion's reasoning and reliance on Supreme Court precedent.

RobertE

Yesterday's (6/27/2002) Talk of the Nation on NPR devoted an hour to the subject and was IMO pretty well done. The host of the show wasn't shrill and the two guests were actually law professors and historians, as opposed to usual blowhards who get trotted out. Both gave a detailed background of the authorship of the original pledge, the context under which it was changed during the Eisenhower administration, and a pretty fair assessment of this rulings future. (Both seemed to agree with reasoning of the decision, though they felt its chances of standing as is are pretty slim.) The only real twit was the US Senator whose stunning argument against the ruling amounted to "But we are a nation under god. WE ARE DARN IT BECAUSE WE ARE". I came away with the feeling that Eisenhower is probably spinning in his grave right now.

To hell with Faux News, CNN, and the like. Tune into to NPR. At least they present guests with some brains and don't put up with shenanigans.