Thursday, September 15, 2005
Thoughts on the Pledge
First, my prediction. One of three things will now happen:
1. The 9th Circuit will send it back to the district court since it is not, in fact, bound by the 9th Circuit's previous ruling;
2. The 9th Circuit will reverse on the merits;
3. The 9th Circuit will affirm. In which case the Supreme Court will bounce it back since the district court was not, in fact, bound by the 9th Circuit's previous ruling. From there, whatever happens, the decision will ultimately be reversed on the merits.
Second, as always, the religious right must end up fighting with itself. On the one hand, it must refer to the invocation of God as mere "ceremonial deism." On the other hand, it insists that it really does mean we are a nation under God. This same tension plays out every time in Ten Commandments and religious display cases. You find lawyers for the most religiously observant people making arguments in court like "No, no, no. We don't really care if people believe in God or not; we just want to acknowledge as a historical matter that Madison believed in God." And then you find the clients on the courthouse stairs making statements to the media like "God is all powerful, and if the godless judges don't affirm that, the end is nigh." Don't get me wrong: the godless left is hardly immune to hypocrisy (suddenly we all love states' rights!). But, from the perspective of someone sitting in the stands rooting for one team over the other, I can't help but enjoy myself at watching these knots be tied.
Finally, the big normative question. Frankly, I think Ethan is wrong. While I do wish we had a real and deep commitment to religious pluralism (including the non-religious), the bottom line is that we do not. Christmas is a national holiday. 'Nuff said. The rest of us are outsiders. One or two fewer displays of the Ten Commandments isn't going to change anything.
I do not quite agree with Noah Feldman that we should be altogether comfortable with religious displays and invocations of God (and I certainly do not believe that his solution to the Church-State problem actually solves anything); but insofar as he argues That's Just The Way Things Are, I agree with him.
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In an inversion of my usual practice, I wrote a long post over at TMV and are pointing you to it from here. So, if you want my opinion on the most recent Pledge decision, check it out over here. Since it is a response to a previous post my bloghost J... [Read More]
Tracked on Sep 16, 2005 1:44:23 AM
Normative questions are questions about the way things ought to be. From what I can tell, Hillel, you are simply telling us the way it is (a descriptive or positive account), and then telling me that I'm wrong for suggesting that things ought to be different--indeed, that doctrine commands them to be different.
Posted by: Ethan Leib | Sep 15, 2005 3:49:44 PM
Ethan, I think we both wish things were different. But as a descriptive matter we live in a particular kind of society. Once we both accept that we do live in that society generally (i.e. you aren't arguing that we should do away with Christmas as a national holiday, are you?), we can still make normative choices. Given that our society is a christian one, and given that nothing we do will ever change that, as a normative matter I choose not to be bothered by Christmas, the creche, or "under god." In other words, because, as a descriptive matter, I cannot change the big picture, I have little interest, as a normative matter, in fighting battles that are likelier to cause me more harm on smaller matters than if I just left things alone.
Posted by: Hillel Levin | Sep 15, 2005 3:59:52 PM
The CA9 might also say, well, you weren't bound by the reversed opinion, but we agree with it, so we affirm.
Posted by: Chris | Sep 15, 2005 4:00:53 PM
True, Chris. In which case the final sentence in option 3 applies: From there, whatever happens, the decision will ultimately be reversed on the merits.
Posted by: Hillel Levin | Sep 15, 2005 4:49:48 PM
You mention the quandry this creates for the religious right. I think that's probably an accurate summation (I don't actually know, not being party to the religious right's interior debate).
However, do you feel that this case presents a bigger quandry for the religious right, or for the secular left (in the sense that they probably love the result, but are aware what a price they might pay at the ballot box over this issue if they don't distance themselves from it, given overwhelming public opposition to either the removal of "under God" from the pledge and growing anger at judicial activism), or does this issue present both sides with roughly equal-weighted (but sustantively very different) dilemmas?
Posted by: Simon | Sep 15, 2005 5:29:20 PM
Interesting question, Simon. My thought is that the very different substance of the dilemmas renders them different enough that we can't meaningfully compare them (though we can certainly discuss both dilemmas).
The dilemma on the left is that the goal in this case might conflict with a different, perhaps larger, goal; and how should one navigate that problem? It is purely tactical.
The dilemma on the right seems to be one of hypocrisy. The law is relatively clear on what you have to argue: the pledge isn't really about God, but rather about history. But no serious religious individual would accept that religious symbols are symbolic of anything other than the truth of religion itself.
So I would say that the dilemma on the left is one that deals with practical consequences; whereas the one on the right is more of an existential and personal dilemma.
Posted by: Hillel Levin | Sep 15, 2005 5:37:16 PM
Just ignore organized religion and its idols. That's right, those who fight tooth and nail or believe fervently in the necessity of religious expression to others are worshiping idols in your creches, monuments, writings and pledge phrases. To some, they have become as important or more important than the teachings and philosophies they are meant to represent.
It is akin the to flag-burning issue. Which is more important, the flag or the principles (including free speech) for which it stands.
Posted by: TomH | Sep 15, 2005 6:02:11 PM
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