Well round 1 of round 2 has gone to Michael Newdow. Newdow is the doctor/lawyer from California who filed a case to have the words "under God" struck from the pledge of allegiance. His first suit went all the way to the Supreme Court but was dismissed there because they ruled that he lacked standing to bring the suit (because he did not have custody of his daughter). So now Newdow has refiled the suit on behalf of several other parents who do have standing and it has to start the process back up the legal ladder. The first round of that process just ended with a Federal judge declaring that the Pledge was in violation of the establishment clause as worded.
While the judge in the case, Lawrence Karlton, will no doubt get savaged by the right wing media, he had little choice. The 9th Circuit had already ruled in the previous case and despite the fact that the Supreme Court later dismissed it due to lack of standing, that is clearly how they will rule on it again, so he was just following that precedent. This case will now be appealed, the 9th circuit will almost certainly make the same ruling, and in two years the Supreme Court will likely take the case again.
I have mixed feelings on this case. If precedent is applied, particularly the Lemon test, it's an easy decision. Under the Lemon test, the congressional decision to add the word "under God" to the pledge is clearly a violation of the Establishment clause. But the Lemon test is not always applied, and the Supreme Court might well use a coercion standard instead to judge the case. I also think that Newdow is little more than a self-aggrandizing huckster out to make a name for himself. He showed that with his ridiculous suit last year to stop Bush from having a minister say a prayer at his inauguration, a case that was rightly and summarily thrown out.
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He may or may not be a huckster (what's your evidence for that, by the way?), but Newdow's my hero, if only for this...
From MSNBC:
...
Even though Newdow's argument did not seem to receive much support from the justices, Newdow did get a boost from the audience in the courtroom. Newdow had argued that the words "under God" were divisive and damaging to national unity, by pitting atheists against believers.
"What was the vote in Congress" when it decided in 1954 to add the words "under God" to the pledge, asked Rehnquist.
Newdow replied that it was "apparently unanimous," prompting Rehnquist to question how divisive the pledge really was.
...
"That's because no atheists can get elected to Congress," Newdow insisted, prompting a sudden round of applause in the audience -- in flagrant violation of the court's rules. "The courtroom will be cleared if there's any more clapping," Rehnquist declared.
In my opinion, truer words than Newdow's were never spoken. The faux piety demonstrated by our congresspersons is often little sort of nauseating.
Anon wrote:
It's a judgement, not an empirical claim. I base it primarily on the ridiculous lawsuit he filed in 2004 regarding the inauguration, which he had to know he had zero chance of winning. That suggests he's looking more for his 15 minutes of fame to me. But I don't know the man. I think his pledge case is correct on the merits, though not overwhelmingly so. There are rational counter arguments against it (and of course, many irrational counter arguments against it). But Newdow just seems like a fame-hound to me.
Just to point out, the dismissal of the first case due to the lack of standing (which was bogus, but I'll avoid that issue) did not address the merits of the case.
I'll point out one other issue. A strict constructionist might obviously ask what power under Art 1, Section 8, of the federal constitution gives the Congress the power to promulgate what is essentially a loyalty oath. I've read the FedConstitution, and I cannot figure out where the power is supposedly derived from.
I'll turn this issue on its head. I did the pledge of allegiance in the 1950s and 1960s when I was in grade junior and high school. It didn't mean anything. Blah, Blah, Blah. It became nothing more than a rant.
From http://underthenews.blogspot.com ...
A federal judge in California has ruled that reciting the Pledge of Allegiance in public schools is unconstitutional because the pledge's reference to "under God" violates school children's right to be "free from a coercive requirement to affirm God."
OK, it's California, where a guy with a petition to repeal the suffrage of hamsters could get 10,000 signatures in 30 minutes. It's ironic that ours is a nation where burning the flag is defended as free speech, but kids saying "under God" should be gagged. But really, is this the most pressing issue before a nation at war, a nation rabbit-punched by a hurricane, and a nation with a big al Qaeda target painted on its back?
On one hand, if God intended to reward us for including him in our daily affirmations before class, He might go a little easier on the hurricanes. I mean, don't you think that admitting we're "one nation under God" should invite some tender mercies?
On the other hand, maybe He doesn't care what we force schoolkids to say out loud, and is more interested in how we conduct ourselves when nobody else is looking.
Who knows? The Lord hasn't really been keeping up his blog, so we're not sure what He's thinking. But I can tell you what I'm thinking: These attention-starved atheists are starting to be as annoying as megawatt televangelists.
...that is clearly how they will rule on it again, so he was just following that precedent. This case will now be appealed, the 9th circuit will almost certainly make the same ruling...
That explains it, then. I followed a bit of the debate on Volokh Conspiracy about what it meant for a reversed ruling to still have precedential value. And here you've laid it out: when the facts of the cases are substantially similar, a repeat case will result in the same ruling on appeal. There is still some debate, of course, about whether the district judge is obligated to weigh the case in a vacuum, whether he can assume the facts are similar, and whether a different appeals panel will give the same result.
I've heard it said that part of the reason Newdow brought that suit was because (in the words of one internet poster):
You can find it in "Professor's" comment
here
I can't speak to the veracity of this poster's claims, but on the surface it seems at least plausible.
Sorry, that last post was in regard to the inaugeration prayer suit.
Ron Franscell wrote:
This is an absolutely absurd comparison. Kids are of course free to say "under God" all they want. The issue is whether the government can mandate that someone either say those words or face being ostracized by opting out (the courts have already ruled that kids cannot be forced to say the pledge, but the only alternative is to refuse to say it and face the scorn of your classmates). The issue is absolutely not the right of a child to say "under God". Kids don't initiate pledging, the government does.
Of course not, but that is entirely irrelevant. What's the court supposed to do, announce that they won't hear any cases that they deem to be less important than Al Qaeda?
As I said above, that's pretty much my analysis of Newdow as well. But there are good arguments against his position and bad ones. The ones you make above are bad ones.
Grumpy wrote:
Actually, I disagree with the judge's position here, I was just noting what he said. He should not have said that he is bound by the prior 9th circuit court ruling because he's not. It is not a binding precedent. He could perhaps have said that while he isn't technically bound by it, he will look to it for guidance on how the higher court will rule. That's reasonable. However, it's really not all that clear that the new case will have the same result in the appeals court. It was a 2-1 ruling by 3 out of about 30 judges on that appeals court. It will likely be 3 different judges from that circuit to hear the new case, so there's a pretty good chance that the result won't be the same. I think the judge was being lazy and taking the easy way out, knowing that no matter what he ruled it would be appealed. So he tried to render a decision that was least likely to be overruled and that was the easy way to do it.
As I said, it's debatable. You get credit, Ed, for at least explaining why it might be plausible. Ultimately, the kicker is that it's an example of judicial non-activism.
I doubt he is doing it for the fame. This type of suit usually garners the wrong kind of fame. Death threats from fundies, for example. I saw him speak at my school the day after he was in the Supreme Court and there was a bomb threat called into the auditorium. The bomb dogs did not find anything, but I am sure he gets this all the time. He would have to know this would happen again if he re-challenged the pledge. I do not think he is just looking for fame.
"I think his pledge case is correct on the merits, though not overwhelmingly so. There are rational counter arguments against it (and of course, many irrational counter arguments against it)."
Just out of interest, what are the rational counter-arguments?
As far as I'm concerned Newdow is correct on the merits, but it's a tempest in a teapot. We recited the pledge in the 1950s and 1960s (when I went to grade, middle, and high school), by rote. And we protested the Vietnam war. The rote recitation of the pledge became merely a "blah, blah, blah" a meaningless exercise.
To cite an analogy, we also recited the "lord's prayer" in church, and it had the same effect: "blah, blah, blah," a meaningless exercise.
Just out of interest, what are the rational counter-arguments?
In a nutshell (and not making any claim as to the relative strength of the arguments, but only that they're rational):
Under the Lemon test: Neither the purpose nor the effect of adding the words "under God" to the Pledge was to establish an official religion. Instead, the purpose was simply to recognize our nation's history and traditions. It does not result in any excessive entanglement of church and state.
Under the endorsement test: Adding the words "under God" to the Pledge is not an endorsement of religion because it was not intended to express an endorsement of religion but simply to reflect our nation's history and traditions, and a reasonable observer would understand it as such. By adding "under God" to the Pledge, Congress did not do anything to make any person feel like a political outsider or a member of a disfavored minority.
Under the coercion test: No child is coerced to recite the Pledge or the words "under God." Any child is free to opt out of the recitation, in whole or in part, without fear of reprisal or retaliation.
The ruling was in the right; kids should not be forced by politicians and bureaucrats to affirm any god; but SO WHAT? As "coercive requirements to affirm God" go, this is tame, harmless, and not worth one tenth of the time already spent on it.
Why couldn't Michael Newdow simply tell his daughter that she doesn't have to say the words "under God" if she doesn't feel like it? Dozens of kids going silent at that part of the Pledge would be a ringing gesture of protest, and wouldn't cost anyone anything. And what would the schools do? Would teachers have to watch every kid's lips with eagle-eyes, and flog every kid who didn't seem to be saying those two words? What would they do if parents simply said "I will not support your enforcement of this rule"?
Michael Newdow is an idiot who gives atheism a bad name. This whole fight started as a quarrel with his ex, and even his daughter, whose rights he is supposedly defending, no longer supports him. And now he's using our courts to hog attention at the expense of REAL victims of REAL religious coercion. No one benefits from this but the Christofascists, who need this idiot to divert attention from their own deranged extremism.
GeneralZod: yes, he's doing it for the fame. The death threats probably make him feel like a brave persecuted martyr, and as everyone knows, if you're persecuted, it proves you're right and "the establishment" is afraid of you. Extremists, idiots, losers, con-artists, and people who have nothing to offer beneath their noise, all thrive on this sort of attention. Look how quick the creationists are (to take just one example) to claim "persecution" as soon as people start to refute their arguments.
Newdow is right, sort of, but I really hope the courts rule against him, just so we can move on to important issues. Sorry to be irrational, but this guy's cause really doesn't do religious minorities any good.
"Newdow is right, sort of, but I really hope the courts rule against him, just so we can move on to important issues.Newdow is right, sort of, but I really hope the courts rule against him, just so we can move on to important issues."
Speak for yourself. It's a bit rich to talk about moving on to the important issues when Congress took the time to pass a law specifically to insert those two words. If the courts can't rule in his favour in such a blatant case of establishment, then what hope do we have for subtler but more pernicious cases?
Newdow I don't get, but I think he makes a good case. Will he win, who knows, I tend to think there are better ways to keep church and state seperate. Raj is correct on this.
Having said that this is not correct either-
'Extremists, idiots, losers, con-artists, '
C'mon you can do better than that.:-)
And for what it's worth this guy has more of a legitimate claim to martyrdom than the usual group of martyr's.
I would counter that if the courts get bogged down in cases that involve no real harm to anyone, they will have less time and energy for serious issues involving real and harmful discriminatory practices.
I would also counter that religious bigots will be happy to use people like Newdow to portray religious minorities as whiny, frivolous idiots who want to keep kids from praying. That's all a load of bollocks, of course, but if the bigots can divert people's attention away from real issues of discrimination, then they will have won a significant victory.
Newdow, like the late Madlyn Muarry O'Hair, may give the religious right a convienent strawman, but you can't win with religious bigots. As far as religious minorities are concerned they don't care. They're not just determined to portray religious minorities as whiney and frivolous, they're convinced religious minorities who complain are whiney and frivilous. I think it's note worthy that religious right groups usually report school prayer cases without mentioning the allegations of harrassment that are reported in the big bad mainstream media. A number of school prayer cases like Indian River, Delaware and Ponotoc, Mississippi are usually reported with allegations of harrassment. To hear the religious right report these cases it's not about a religious minority who may or may not have been coerced and harrassed. It's about a bunch of ACLU lawyers working out of a New York office with Hollywood money invading redstate America.
I'm not concerned with the bigots, I'm concerned with keeping the general public's attention focused on important issues of religious discrimination.
Well I think if your a child in school and your being harassed by children regarding you lack of 'pledge reciting' it is an important issue to that child and his/her parents.
What is important to you may not be important to another and vice/versa.
If a child is being harassed over religious matters, and if the adults are, at best, not helping matters, than that is a real issue -- an issue separate from the Pledge itself. So far, I have not read of Newdow's daughter being singled out or punished for not saying "under God," which is why I am quick to dismiss his complaint. If such punishment is taking place, then I have to say that Newdow and his supporters have done a dirt-poor job of bringing it to the public's attention.
No, I see your point involving Nedrow and agree for the most part.
But to say this issue is not important to others is not exactly correct either.
Ginger Yellow wrote:
In addition to the ones Dan makes above, I think there is an even stronger argument to make here. The basic argument is between strict separation and accomodationism, both of which can be traced directly to the most prominent of the founding fathers and thus can both lay claim to being an originalist reading of the religion clauses. On the one hand you have Madison and Jefferson (the former more consistent than the latter), who argued for a very strict separation of church and state, wherein the state was forbidden to take any position at all on any religious question. On the other hand you had Washington, Adams and even Franklin, all of whom were accomodationists. They certainly believed that no official establishments of religion would be allowed, but they also believed that non-binding, non-sectarian, non-coercive statements like thanksgiving proclamations and days of prayer were entirely appropriate for government to make. Their argument was that religion helped sustain social harmony and helped people focus on the virtuous life.
Whether one thinks they were right or wrong, their view held sway in this country for a very long time, and continues to hold sway over the majority of it. So I think one can make a reasonable argument that, in the absence of an actual establishment of religion and coercive government action, such public expressions of lowest-common-denominator religious sentiment is not prohibited by the first amendment under the view of that text taken by probably the majority of the founding fathers who wrote it and ratified it.
Do I agree with that? No. I would argue that American society has changed a great deal in 225 years, becoming far more diverse religiously than it was at the time. And faced with two competing interpretations, both of which can make an argument for an originalist understanding, we should choose the one that is more reasonable in current circumstances. But as I said, I don't think this is an easy, slam-dunk case. The arguments of the other side are not irrational or unreasonable. Well, at least my version of their arguments is not irrational or unreasonable; there certainly are many other arguments made by the other side that are entirely ridiculous.
Hope that explains it.
I think some are going a bit far in the comments above. I don't think Newdow is a con man or a fraud or an idiot. I do think he has gotten his dander up about this and really does see himself as a crusader and wants to strike that pose. To someone so motivated, the fact that he gets death threats only reinforces the image of himself that he has and wants others to have. It's pretty basic psychology.
I have met Michael Newdow several times, and both heard him speak and spoke with him. Comparisons to O'Hair or televangelists are unwarranted; he's far more subtle and complex than that. For what it's worth, he did not seem to me like someone seeking publicity or grinding a personal ax. He seemed like someone who cares, very deeply and sincerely, for ideas and their consequences in the larger picture.
Newdow's daughter was not being harassed, and he's been pretty clear that family issues weren't his real concern. His suit was undertaken as a matter of principle. Both crackpots and heroes tend to work that way.
As for which he is, I suppose that is debatable. As a practical matter, our religious pledge and motto almost always seem to be used as opening wedges in arguments which undermine a separation of church and state. If no reasonable person would think that an official patriotic proclamation which states we are "under God" is anything more than a recognition of "our history and traditions" - then most Americans are not reasonable. Which should come as no big shock.
As always, Ed does a great job of elaborating on the arguments. (I should have him give the Establishment Clause lecture to my Con Law classes!) As to this:
So I think one can make a reasonable argument that, in the absence of an actual establishment of religion and coercive government action, such public expressions of lowest-common-denominator religious sentiment is not prohibited by the first amendment under the view of that text taken by probably the majority of the founding fathers who wrote it and ratified it.
Ed is of course correct that it is a rational argument from the originalist position; it is also justified by reference to history and traditions. Justice Kennedy responded to this argument in favor of a "civic" religion at length, and very eloquently, in Lee v. Weisman, 505 U.S. 577, 594-98 (1992).
Just to remind you, a public school cannot require a student to recite the pledge. That was the result of a decision from a number of decades ago regarding--if memory serves--the 7th day adventists. The problem with that decision, though, is that that might not shield those who might want to recite the "loyalty oath" (which is what it is) from ostracism. The fact that young people are obligated to attend public schools (unless their parents can find and finance approved alternatives) makes it doubly problemmatic.
I don't think Newdow is a huckster, or a media fame-hound.
I think he filed that suit (in 2004 regarding the inauguration) because it was the right thing to do, in spite of the fact that he knew he had no chance in winning.
This is a pretty simple case. Simply put, there ain't no reason the words "under god" should be included in the pledge of allegiance. Period.
I stand and applaud for Newdow. The man has got courage, integrity, a fightin spirit, and plenty-o-wits.
Go Mike!
"Just to remind you, a public school cannot require a student to recite the pledge. That was the result of a decision from a number of decades ago regarding--if memory serves--the 7th day adventists. The problem with that decision, though, is that that might not shield those who might want to recite the "loyalty oath" (which is what it is) from ostracism"
There is a big difference between the Barnette case and the current case. "Under God" was not in the pledge at the time. The current issue is whether the pledge promotes religion? Barnette was about whether or not a public school could compel a kid to act against their beliefs. The Barnette case could compared with students who refuse to take public showers or dissect animals.
Bill at September 16, 2005 01:28 AM
Actually, Bill, there are two issues in the Newdow cases. One issue is whether the Congress's addition to the PoA (pledge of allegiance) of "under god" violated the establishment clause. The second issue is whether the school district's mandate to the teachers to lead their classes in the PoA (with the "under god" phrase) violated the establishment clause.
I have raised a third issue: what in the Constitution gives Congress the power to legislate the text of the PoA in the first place? I have read the Constitution forwards and backwards over the last 30 year and have been unable to find anything therein that gives Congress the power. If the FedGov is supposedly a government of powers circumscribed by the Constitution, that should be taken into account.
As to Newdow's first issue, it is fairly evident that the addition of "under god" violated the establishment clause. The clear intention, when the phrase was added in 1954 during the Cold War was to differentiate the US from the "godless communists." That is indisputable. The US was godly, but the commies weren't
As to Newdow's second issue, that should be obvious. How many people do you believe would be supportive of a teacher leading his class in the PoA if he was required to cycle through the various deities. Mithra? Buddha? Osiris? I could go on and on and on. The recitation is not exactly equivalent to the discredited practice of requiring a "non-denominational" prayer to be blasted over the schools' public address systems, but it comes close.
Regarding
There is a big difference between the Barnette case and the current case. "Under God" was not in the pledge at the time. The current issue is whether the pledge promotes religion? Barnette was about whether or not a public school could compel a kid to act against their beliefs.
it strikes me that the addition of "under god" would make a requirement that a student recite the pledge more problemmatic, not less.
Regarding the second issue, how many people
The Barnette case could compared with students who refuse to take public showers or dissect animals.
I suppose that you can compare the cases, but they are in no way similar. If a student doesn't want to take a public shower after gym class, he or she doesn't have to. Change clothes and go back to class. If someone objects to dissecting animals (which I didn't have to do in bio class in high school in 1963--and that was an honors class) don't take bio class. It usually isn't a requirement.
I was trying to point out the difference between the Barnette and Newdow cases. What I see as crucial in the Newdow case is whether or not "under God" in pledge is government sponsorship of active religion, hence an establishment of religion. The pledge is usually recited collectively so opting out becomes a burden for the objector. The school prayer cases set the precedent that the state cannot sponsor religion in such a way that imposes a burden on people who don't agree with that particular religion. As for public showers and disassecting frogs both have often been mandatory in schools and objections to both have led to lawsuits. I think Barnette can be compared to those cases because "under God" was not in the pledge at the time and the question of refusing to say it is not necessarily limited to religion.
I think the real heart of this case lies in whether the concept of God's existence is about religion. Many people who believe that God exists use this issue to make the point that it is NOT. According to this view, God's existence is simply a fact, one which was necessarily recognized by the framers as the only legitimate foundation for the liberty of man and Constitutional authority. Religion has to do with variations on how an individual thinks they should understand and relate to God, and the government cannot interfere in religious matters. Therefore, "acknowledging God" in the Pledge of Allegiance is not an establishment of a religion.
Newdow is asking the government to respect atheism as equivalent to theism. His argument is that both views are personal matters of conscience which relate to the idea of God, and therefore should be treated equally before the law. To do otherwise is establishing God's existence as a fact, which IS a religious viewpoint the State has no business meddling in.
Historical disputes aside, the emotional thrust of the opposition seems to be that many if not most of his critics do not want to give this sort of ground to atheism. Doing so undermines their deep-felt certainty that God's existence should never be open to dispute: it is already known in the hearts of all good people, and is vital for the formation of virtuous citizens.
The pledge is usually recited collectively so opting out becomes a burden for the objector.
What if the objector simply does not pronounce the two offending words? Even if the teacher could somehow ascertain which kids went silent on a given day, what would he/she do?
I really think that in this case, a little civil disobedience would do more to isolate the religious right than this court case: one or more kids go silent, and if the school tries to punish them, THEN sue for discrimination.
Another set of issues: What about the public school teahers teachers who object to the pledge and refuse to (a) recite it while leading it or (b) refuse to even lead it?
Teachers can be fired for failing to perform their duties. Principals are not likely to rehire teachers if the teachers' actions result in complaints or controversy. Unless the Supreme Court rules the inclusion of "under God" to be unconstitutional, we are unlikely to see atheist/agnostic teachers deciding to follow their own conscience. Imagine the complicated rules that could be required for teachers, to protect their rights, if the court rules the offending words unconstitutional.
Students can't be forced to recite the pledge, of course, but they can get in trouble for creating a disturbance. What counts as a disturbance? That will vary with the school rules, the teacher leading the pledge, etc. Some teachers (and classmates) will be offended if the student sits during the pledge instead of standing, and try to enforce a rule of you must stand. Others may say it is ok to sit.
When I was in High School in the late 60's, my family moved from California to Texas, where the administration said the Lords Prayer before the pledge and students were supposed to stand for it and the pledge. I was flabergasted and refused to have anything to do with it all. After a few weeks I was called to the office. The Vice Principal was not amused when I pointed out that they were violating the law with the administration-led prayers. But they let me do what I wanted, which was to sit quietly and ignore all of it. As long as I didn't create a scene, they weren't going to do anything further. Amazingly, in two years at that school, literally no one except the Vice Principal ever said a word to me about my lack of participation (even other students); was I every lucky!. And I was on the cross country and track teams and was not shunned or ostracised by the students.