Alonzo Fyfe

CNN News article

Krieger

I just saw that on Yahoo news.

EDIT: one more thing, please scroll to the bottom of that article and check out the Yahoo message board about this topic, it will be quite "interesting", trust me.

RufusAtticus

Yeah!

Stephen Maturin

You can download a copy of today's order in PDF here. The three-judge panel that originally decided the case voted unanimously to deny the pending motions for reconsideration.

As to the petitions for rehearing en banc, nine of the Ninth Circuit's judges voted to rehear the case, four short of the number needed. So, there will be no en banc rehearing.

The panel did modify its original judgment to eliminate its previous finding that the 1954 act of Congress adding the words "under God" to the Pledge was unconstitutional per se. The modification simply makes clear that the ruling is limited to recitation of the Pledge in public schools.

The next step, of course, is an appeal to the Supreme Court. The odds of the Court refusing to hear this one are close to nil, especially since Newdow conflicts with a Seventh Circuit decision.

BibleBelted

I just saw the same story. Very courageous stand by the 9th Circuit. Can we expect to see Sean Hannity giving out the judges' home phone numbers on his stupid show again?

And more dissenting opinions from noted constitutional scholar Charlie Daniels?

Gooch's dad

I've flip-flopped back and forth a bit on this court decision. While I'm wholeheartedly opposed to having 'under God' in the Pledge, I think it is the wrong battle for atheists and other church/state separationists.

The 9th circuit decision actually is based on some sound SCOTUS precedents, such as the decisions about prayer at graduations and football games in several Texas cases. The prayers created the strong impression that those who didn't participate were second class citizens. The 'under God' in the Pledge does the same thing.

What I'm afraid of is the Supreme Court actually upholding Newdow and the 9th Circuit decision. Christian America will knee-jerk themselves into demanding a Constitutional Amendment adding 'under God' to the Pledge, and probably quite a few other establishment actions.

Alonzo Fyfe

These possibilities do not concern me, because I think that there is a lot to be gained by having these issues debated in the streets rather than in the courts. The reason separation of church and state has lost its meaning in this country is because we have spent 225+ years debating whether what the founding fathers wanted or did not want, rather than debating whether it is a good or bad idea in its own right.

The whole public discussion is one big genetic fallacy.

We would be better off getting past it and, instead, debate the issue on its merits.

[Note: My objection to the pledge is that all who say the pledge says that those who are not "under God" rank on the same level in society as separatist/rebels, tyrants (and their supporters), and all perpetrators of injustice. And it is wrong on its face for the government to have its citizens pledge to think of athiests as they would separatists, tyrants, and criminals. In contrast to this, all debate about what the founding fathers wanted is a waste and a diversion.]

Toto

Reinhart's concurrence:

I also feel compelled to discuss a disturbingly wrongheaded approach to constitutional law manifested in the dissent authored by Judge O’Scannlain. The dissent suggests that this court should be able to conclude that the panel’s holding was erroneous by observing the “public and political reaction” to its decision. Dissent at 2783. This is not the first time that the magnitude of the political response regarding an issue has distracted certain members of this court. An equally disturbing misunderstanding of the nature of our Constitution and the role of the federal judiciary was manifested in Coalition for Econ. Equity v. Wilson, 122 F.3d 692 (9th Cir. 1997), a case involving a California initiative on the subject of affirmative action. There, the three-judge panel, in a case that unfortunately was not taken en banc, notwithstanding its exceptional importance, made the following remarkable statement: “A system which permits one judge to block with the stroke of a pen what 4,736,180 state residents voted to enact as law tests the integrity of our constitutional democracy.” Id. at 699 (O’Scannlain, J.).

The Bill of Rights is, of course, intended to protect the rights of those in the minority against the temporary passions of a majority which might wish to limit their freedoms or liberties. As Justice Jackson recognized:

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943). It is the highest calling of federal judges to invoke the Constitution to repudiate unlawful majoritarian actions and, when necessary, to strike down statutes that would infringe on fundamental rights, whether such statutes are adopted by legislatures or by popular vote. The constitutional system that vests such power in an independent judiciary does not “test[ ] the integrity of . . . democracy.” It makes democracy vital, and is one of our proudest heritages.

from O'Scannlain:

But Newdow II goes further, and confers a favored status on atheism in our public life. In a society with a pervasive public sector, our public schools are a most important means for transmitting ideas and values to future generations. The silence the majority commands is not neutral—it itself conveys a powerful message, and creates a distorted impression about the place of religion in our national life. [18] The absolute prohibition on any mention of God in our schools creates a bias against religion. The panel majority cannot credibly advance the notion that Newdow II is neutral with respect to belief versus non-belief; it affirmatively favors the latter to the former. One wonders, then, does atheism become the default religion protected by the Establishment Clause?

. . .

[18] See Michael W. McConnell, Religious Freedom at the Crossroads, 59 U. Chi. L. Rev. 115, 189 (1992).

O'Scannlain does a pretty good job of trying to defend the indefensible, except that he thinks that "Year of our Lord" in the date of the Constitution means that the Constitution mentions God, that the God referred to in the Declaration of Independence is a personal God, that Lincoln's Gettysburg Address is some kind of official document. And then there's that footnote to McConnell.

Grumpy

Crap. That was the part I liked. Especially since I've been modifying my news copy to read "ruled that the act of Congress adding 'under God' to the Pledge was unconstitutional." Which is now wrong. (Technically, that's what they ruled at the time, so my background boilerplate is accurate.)

I also figured the act of Congress is more clean-cut - and far-reaching - than the limited case of reciting the Pledge in schools. If that's the case, I think Newdow has his work cut out for him.

{edited by Toto to fix tag}

Philosoft

If this is O'Scannlain's level best, then it really is an indefensible position:This is absurd because the upshot is that any piece of federally recognized speech that doesn't mention God "confers a favored status on atheism." An atheistic pledge would say something like "under no gods." I think case law is pretty clear on this.
This is even more absurd. The presence or absence of religious language in the Pledge is no more a microcosm of "the place of religion in our national life" than is this website.
The old non-sequitur/strawman 1-2 punch.
Good gravy. If a pledge that doesn't mention God at all is not neutral with respect to religion, then a religiously neutral Pledge cannot possibly exist.
One wonders if this bizarre persecution complex knows any bounds?