Toto

First of all, as moderator (meaning clean up crew), I asked you to separate out your responses into different threads to make them easier to follow. You have not even attempted to comply. What is your problem with following the rules?

Secondly, once again you are avoiding the issue.

Now you feel the need to insult me. Perhaps you need to make your writing style a little clearer or more precise. You might also realize that I have the same criticism of your argument on denial of cert even if you claim it is only a probability.



Are you saying that Barton was too stupid to know what he was doing? You saw an article quoting historians who objected to Barton implanting false quotes in the national dialogue on church state separation.

There are conservatives who can argue for an acommodationist position on separation. Barton is not one of them.

I did not ignore the paragraph of qualifications you listed - I saw that most of them were not in fact academic qualifications, but political references. Let's look at them:

Translation: he's a political activist and propagandist.

He collects documents. There's no proof he knows how to interpret them.

Translation: he is a political activist who has gotten himself appointed to various state committees by his religious right friends.

No academic awards. I think you get listed in Who's Who by paying a fee. An award from the DAR is not something most people would brag about.

The end. He has a BA from a religious school and an honorary degree from another Christian college. No book awards. No degrees from secular colleges.

If you tried to put this man on the stand as an expert witness, he would not qualify.

But yet you put him forward as an authority and expect us to defer to his expertise.

As for the Notre Dame Journal of Law, Ethics, and Public Policy, it is:

In other words, it is an activist journal, a tool of the vast right wing conspiracy. </mild sarcasm>

A look at recent contributors shows a heavy representation of politicans - Geroge W. Bush, Rudolph Giuliani, Rick Santorum, none of whom have great academic qualifications.

Since Barton's effort is not online, it is hard to judge the quality.

That URL did not come through. But I think I know the case you are talking about.

You are still only making an appeal to authority. Renquist is an ideologue, quoting a Republican ideological operator who wrote some fake history on church state separation.

You have still not defended that spurious-sounding quote of Jefferson from the Rev. Ethan Allen. You have not defended this sentence:

since I argued that Jefferson took religion very seriously, edited his own version of the Bible, and seriously discussed theology.

Or explained this mangled prose:

pug846

Oh, Lord. Did you even read any of those cases?

That was a real winner. The 11th Circuit upheld the constitutionality of an Alabama statue that permitted nonsectarian student-initiated prayer at school-related events. Sherman, of course, was not cited, but more importantly, the Supreme Court granted cert. and remanded the case back down to the district court in light of their ruling in Santa Fe.

Another real winner. Here, the 9th Circuit held that a 51-foot Latin cross in a city park violated the establishment clause. (Yes, the 9th Circuit. Odd how you conveniently forget to complete the above citation...) The only mention of the pledge is in a concurrence.

As you concede, although at least your honest about it here, the pledge is discussed in dictum. Not looking so good.

Well, at least you’re one for four. Although, this is only a district court, not all that impressive.

And as I conceded last post, the 6th Circuit did cite approvingly to Sherman.

I always conceded that the central holding of Newdow has not been followed by any other Circuit, which isn’t all that unusual given the fact that the decision is barely a year old. You were supposed to provide evidence that Sherman has been followed. You’ve provided exactly one federal appellate court that has either cited approvingly to Sherman or followed its central holding, not-with-standing the 11th Circuit decision that was remanded back to the district court by the Supreme Court.

Leviathan

It it so disappointing that I have to waste my time, answering "challenges" from the likes of Toto or others, when I should be spending my time discussing the issue(s) here with the likes of Stephen, who actually makes constructive arguments on the argument, not about the authority.

But, b/c the "great authority" here has demanded that I make a post to each individual poster, that now means my burden is to make 5 or 6 individual posts, to each and every person, to address each and every issue they find important, and all the while, still do it in such a candid, sweet manner as if the people I'm conversing with deserve it.

So because he's the big leader/moderator here, how about we start with Toto.

Because you establish them. You have done nothing but quipped about my legal education, making bumbling errors in trying to tell me I'm making "off-hand" remarks, when I did no such thing (which you later admit), and then the substance of your post has came down to attacking the credibility of my sources, of which certainly outnumber anything you've presented to the table.

What I find most unnerving about your prose is that you have the audacity to state, "once again you're avoiding the issue," and then you choose to chastize me for "insulting you." Your evidence of this is my statement that shown you were in error, about interpreting my argument. That is no more an insult to you than if I say good morning. In contrast, you just *love* to mention calls of dodging or sarcastic quips you choose to label as "mild," when in contrast you're being so angered, its coming off the screen.

Your absurdity has now reached to the level, of not only commenting on "spelling errors," but now telling me my prose and writing style needs to be more "advanced?" I fear this will have to be my last post to you: you have simply offered nothing constructive for your last three or four posts, and have only sought to make this a pissing contest, b/c you were "tempted to anger" by a private message that, in my opinion, simply spoke volumes about you.

When you have the same qualifications as Barton, and have written numerous historical books/reports for states like Texas and California, and all you have to discredit him are a bunch of atheist websites griping about something that could have been nothing but a harmless error, of no malice, then you can state what you think is and isn't credible. Your argument has became so absurd, that now the Chief Justice of the United States, citing the same historical arguments as Barton, is just another twisted historian. lol

Leviathan

Next, let's go to Pug, with his skepticism of case law!

All of those cases noted the Pledge, in a light negative to the holding in Newdow, and all you can complain about was whether it was overturned on other grounds, or was mentioned in a concurrence versus the majority opinion. Wow, how compelling of an argument. Yes, some of the opinions are in dictum about the Pledge, absolutely, but you brush this aside as if that doesn't matter. Evidently you have a poor understanding of what dictum is: while it certainly isn't binding, it does shed light on how courts find a legal issue persuasive or not. S. Ct. dictum has been quoted before as being "very important" for the inferior courts to decide cases. The Sherman decision certainly makes this point very clear, warning that its better for an inferior court to err on the side of caution, and leave the overturning of precedent to the S. Ct., if they are so inclined.

The Ninth Circuit, keep in mind this is the court frequently overturned, 9-0, didn't (and doesn't) pay attention to that valuable lesson.

So in sum, I've provided some legal authority which has followed Sherman, whereas you have provided none for Newdow, and the only case to cite Newdow has found it "entirely unpersuasive." Gosh, doesn't look like the case law is on your side.

Leviathan

You need to read posts, more with an eye of, not what you want the post to say, but what they actually say. In short, I answered your questions.

I'm glad you believe your reality has much to "convey from on high" to my reality. Once again, boasting, when you say you don't want to boast.

Leviathan

If you do not see my argument as a "substantive attack on Newdow, regardless of whether you *agree* with it or not, I cannot help you.

Toto

You don't have to do anything or answer anyone.

I only asked that you divide your posts into responses to different posts, just to make reading and responding easier.

Your dripping sarcasm will only get you responses in kind.



Promise?

1. Barton has no real qualifications. You have not reproduced his argument or his citations, you've just told us there are a lot of them, and they're in a prestigious law review. I've shown you that law review prints comments from politicians with no academic credentials.

2. I pointed to an article on the positiveatheism website. But it was written by Rob Boston, on the staff of Americans United for Separation of Church and State, an interfaith organization headed by a Baptist minister.

3. The errors were not harmless. We don't have good standards to judge malice in this case, but misquotes from the founding fathers are hardly innocent errors.

But you seem to be unable or unwilling to find a professional historian to vouch for Barton. Let's put that issue aside.

enfant terrible has produced a very detailed critique of Sherman. You should have fun trying to refute it:

Why Sherman (not Newdow) was wrongly decided

Leviathan

To those actually still debating the merits:

Stephen

The Cert. Argument:

I understand your position, but I have one problem with it. You find my proposition plausible, but also claim it to be plausible that the S. Ct. doesn't find the issue "ripe." Do you believe this to be the case here? You have First Amendment jurisprudence, and the establishment clause is one of the most wishy washy, insane areas of debate. Is it the Lemon test? The coercion test? Establishment test? There has been so much confusion in this law, since the 70's, that I believe the issue was "ripe," or at least it is reasonable to argue it could be.

Additionally, the S. Ct. grants cert. to cases that do not have conflicts in the law, among circuits: that's just one factor the Courts examine, in discerning whether there is an issue that is "ripe" for the Court. But I believe your argument is reasonable also, it does seem to be nothing but a guess, either way you go. The question is what guess you see more reasonable. I see one way, you another. Wow, imagine that: people can civilly disagree, and still have a debate about it.

Very good hypothetical, and analysis. My response is that what is generally true, might not be specifically true. Again, I'm banking on the fact that First Amendment jurisprudence is one of the most hotly contested issues in front of the S. Ct., and couple that with the public outcry against Newdow, I'd say its almost certain that the Court will not allow this issue to "percolate." Additionally, in denying Cert. to all the cases I have cited, discussing the Pledge issue, whether it be Myers or [/i]Sherman[/i] or the other cases discussing it, I've never seen any legal report or news that such an issue was denied so that it could be allowed to "percolate." So, while that is a very good argument, generally, I'm not sure it applies to this specific instance.

The Lee discussion:

I preface these remarks by saying I have not been able to read the *entire* decision.

Does this not call into question the expansive Newdow ruling, that stated that since *anyone* could find the social pressures of saying the Pledge offensive, that then the EC denies the Pledge as constitutional? You correctly state your understanding of this citation, saying, "What the Court's doing here, I think, is clarifying that offense alone does not equal coersion for purposes of deciding whether a particular government action passes EC muster. " I concur. Thus, doesn't what I just asked you logically follow?

As you probably could predict, I see the bolded statement as prophecizing just what Newdow is attempting to do, and which other legal sources verify as a danger. I believe that Michael Newdow is on a mission to end anything religious in the public sphere: his public statements refer that sentiment wouldn't you agree?

Now, you correctly state that the last statement there, the Court is definately admitting that issue is not before them. I openly concede anything of S. Ct. precedent is dictum, and thus is not binding. However, while it is not binding, S. Ct. dictum should be read with more force than dictum from, say a Ct. of Appeals court at the state level. Sherman makes special note of the importance of S. Ct. dictum, and I'd say that is the more reasonable course of action, in contrast to Newdow's expansive view of EC jurisprudence.

You state, "It seems to me that the Court is cautioning against attempts to restrict existing free exercise rights in public schools as opposed to limiting the scope of future EC challenges. " I'd say that is a reasonable interpretation. However, many legal authorities make the argument, which I find persuasive, that the expanse of Newdow *could* threaten the free exercise of religion within the public sphere. Instead of being able to utter "Under God" in the public light, for fear of hurting a little girl's feelings, people in school would have to keep their expressions silent. This is exactly the issue that Sherman decided, even framing the issue as whether a child could threaten everyone else's ability to express themselves in public (along religious lines of course).

But, I will state your distinctions b/w EC jurisprudence and Free Exercise do make sense, and that your conclusory remark of "It's entirely possible to restrict government power over religious matters while at the same time preserving or expanding individuals' free exercise rights," is definately correct. However, notwithstanding this admission, I believe Lee followed all the other examples of cautioning restraint, such as Engel and other cases, and shows the S. Ct. is extremely weary of answering the question of whether the Pledge is unconstitutional.

You correctly identify this as "the test." M problem with your argument is that here, the Court is concluding that a student is being "persuaded or compelled" to participate. Is that not distinguishable from Newdow, where the child is not forced to say the Pledge, nor are they taken out of the room during the Pledge time, like other cases previously found? I concur that Lee's coercion analysis may suggest that such a Court *could* find that the saying of the Pledge to be coercive, but I believe such a finding will not be made by the Court. Newdow has not cited any specific psychological studies making such a conclusion, as petitioner did in Brown v. Board of Education, and I believe the de minimus argument simply makes too much sense. Children are pressured to do many things at school, but the recitation of the Pledge seems to me to just be a political act, which most kids just do, groaning all the while having to stand up. I believe S. Ct. dictum suggests that 5 to 6 members of the Court today find such an argument persuasive, and thus the Court will (should) overturn Newdow.

Finally, you state, "The only question remaining is whether Pledge recitation can reasonably be deemed a "religious exercise." I think it can. " Do you honestly find that reciting the words "Under God" is an act of religious exercise in school? I cannot find any compelling reason to warrant such a conclusion. I believe I follow the O'Connor argument, that it is a solemnizing recognition of history, and the Brennan argument that there are other reasons a Court could find for seeing it as a political act. I believe the Court here, given the political will of the majority seems clear here, will apply a lesser scrutiny level to 4 USC 4, given that there are "other reasons" to find for the Pledge, than religious ones. S. Ct. jurisprudence has constantly been used, over the years, to support this "any other reason" analysis to a case where the majority clearly sees the outcome as being one way. One legal scholar (cannot remember name, sorry) put it best when he said, "the Supreme Court may have their tests and doctrine, but sometimes they must simply apply common sense."

I believe this case will be decided on common sense, not metaphors of walls, which have been expanded so rigourously by a few of the public, at the expense of Constitutional history. Wasn't it Cardozo that complained of metaphors in law constraining freedom?

Notwithstanding my "other reasons" argument from above, I'd say you have a very convincing position that just b/c one may see the issue as political, does not mean it could be seen as religious. My reply is, do you reasonably believe that a majority of people in this nation, nay, even a substantial minority, see the phrase "Under God" in the Pledge as a religious act?

I see it as using the same words of the DoI, Lincoln's Gettysburg Address, and recognizing the *historical fact* that this nation was established by Christians, for religious freedom, and that well over 80 - 90% of the framers of the Constitution where practicing Christians.

You acknowledge that the framer's acknowledged a deity, perhaps the Christian one (probably), and furthermore you acknowledge that the framers believed that deity exercised sovereignity over the nation that you are pledging allegiance to. The Pledge requests that the speaker Pledge Allegiance to the nation, as an act of patriotism. It is not asking you to Pledge Allegiance, or even recognize, a God.

Additionally, I can grant you your interpretation is reasonable, but I would also argue my interpretation is reasonable as well. As is commonly the case with S. Ct. jurisprudence, when you have 2 reasonable interepretations for a legal issue, what does the Court usually do? Defer to the majority. And I know you won't be as hasty as others to cry "tyranny!," that's just simply the way judicial review works. Sometimes the majority will helps shape a decision. Korematsu comes to mind, or some of the Commerce Clause cases, where the Court defers to the intent of the legislature (and thus the majority will).

I would like your reply to my deference argument.
Additionally, I do agree that Lee might have to be reviewed, in its psychological coercion analysis, in order for the Court to reach the "common sense" result that I believe Newdow warrants. I believe you've presented a reasonable analysis of Lee, yet I believe two fold: a) Lee should be constrained in its holding, as the history of EC cases provides (argument above), and b) the Pledge simply is not a religious act (argument above).

Your citation supports your argument, that the DoI is distinguishable. How does that square, then, with my argument that the psychological coercion test, if expanded, could have someone like Newdow, who wants religion out of the public sphere completely, claiming that the teaching of the DoI in school is an endorsement (or better put, a recognition), that this nation was founded on Christian principles? People like Newdow certainly don't want that taught in schools, and thus they will argue, as the egg-shell plaintiff I find Newdow to be here, that it is "offensive."

Additionally, I find that it is also reasonable to find that the DoI is a statement of faith, from Jefferson, that God bestowed upon humanity with "inalienable rights." Certainly this political concept, if we are to accept your intricacy of connection argument from above, is connected to the religious concepts of *God* bestowing these rights to man? Would this not also be the subject of litigation in a post-Newdow world?

Finally, there are many more public acts of religion that would be under threat, such as the Court's statement "God Save This Honorable Court," which would be under potential threat as well. To say we can "believe they're in the clear" might be ok, but the law would still, in the mind of some zealous, eager lawyers (such as Newdow), give the plaintiff a right to sue. What a litigation ticking time bomb Newdow would be!

I'm sorry, I'm just not following this argument. Would you please explain why under Newdow II there would be no threat? If there is any plaintiff out there that finds the words "Under God" offensive, then government-sposored recitation would clearly be against that plaintiff's constitutional rights, am I correct?

No problem.

I'm unaware of how you're reading Sherman, if you have a copy or are reading it off findlaw.com, or whatever, so I'll give you the page numbers/sections.

980 F.2d 437, 442-444(concerning the coercion analysis, and finding that "If it means "all pupils" then it is blatantly unconstitutional; if it means "willing pupils" then the most severe constitutional problem dissolves", then, go about 3 paragraphs down where the Court discusses the "remaining social pressures" and cites Allegheny and Lee), 445 (discussing Lee's implications on the Lemon test), 446-447 (regarding the limitation arguments specifically, they specifically cite to Engel and Lynch, along with Brennan's argument from Schempp - to my knowledge, Lee cited this restraint from Engel, but I will double check to make sure).

Leviathan

Thank you, Toto, for showing the difficult burden, of writing a post for each member, only to come back, and here's another one you must respond to. It makes alot more sense to just write one reply.

Given you cannot be civil, in the least, yep, you've got your promise: no more posts to you, b/c you cannot debate without making insults, nor without looking at who said an argument, before looking at the argument.

If that's the standard the mods here set, to welcome newcomers and those that disagree with their opinions, I'm very sad to say I'm disappointed.

Toto

As I said, you are under no obligation to respond, especially if you have nothing to say.

If you have any complaints about the moderation, please take them to the bugs forum. Any futher comments along those lines will be deleted.