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Thursday, September 15, 2005

Under a Much More Reasonable God?

So we're all set for another showdown on the Pledge of Allegiance.  A federal judge in Sacramento has ruled that "under God" is not to be spoken by grade-schoolers in public school.  I look forward to seeing if Stevens finds his balls for this round.  I must admit that between the Newdow decision and not hiring me after our interview, I really question Stevens' judgment.

[Disclaimer: I realize that the lower court's view that it was bound by the 9th Circuit Newdow case that was reversed by the Supreme Court was odd; we may have to await a third round.  Still, I must say that I found the 9th Circuit's opinion virtually air-tight the first time around.]

Jon Stewart began "The Daily Show" last night speaking about the new Pledge decision and pleaded with liberals to just let this one go; he argued that the courts could be used for more important things.  I'm all for picking our battles.  But I really do believe that 'ceremonial deism' undermines this country's pledge not to make non-believers feel like outsiders.  Leaving our originalism debates to one side for a moment, I see no room for "under God" in our elementary school classrooms under any of the Establishment Clause doctrinal tests.

Stewart did say one thing that is worth repeating, though.  He reminded us that we added "under God" to the Pledge to distinguish ourselves from the godless Communists we were fighting.  Now that we are fighting religious fundamentalists, maybe we should edit accordingly....

One last thing.  Here is my favorite quote from those who opposed the ruling:

"This is another bad ruling that warps the U.S. Constitution and dashes parents' hopes of patriotism in the next generation," said Randy Thomasson, president of the California-based Campaign for Children and Families. "When the Ninth Circuit Court of Appeals delivered the craziest ruling in American history by striking down the pledge three years ago, the Supreme Court stepped in and stopped the insanity. The lower courts striking down the pledge again is like a dog returning to its vomit."

Posted by Ethan Leib on September 15, 2005 at 12:53 PM in Current Affairs | Permalink


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» Look Over There! from The Debate Link
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 1:43:42 AM


Okay, so we're saying that California requires the Pledge of Allegiance to be said (like Texas, I think, in that regard); so why not repeal the law?

Posted by: Simon | Sep 17, 2005 6:25:56 PM

I live in California and I am also a product of California's public school system, so perhaps it is MY business to decide what they teach. If nothing else, the state forcing children to declare their religious views in school (I believe that the state also requires children to be in school) is both morally wrong, and an improper use of my tax dollars.

Posted by: Dman | Sep 17, 2005 5:36:41 PM

The standard, it seems to me, is that a state can make any law it wants, provided its actions do not infract on its own constitution, on the Federal Constitution, a validly-made Federal law, or a treaty ratified by the Senate?

I don't know, I don't live in California, I don't know if you do, but it seems to me that it's no business of mine to decide what is and isn't a good idea for California schools to teach, what they should and should not require as part of their curriculum, as an abstract matter. On what altenative basis are we who do not live in California to object to the activities of California's schools, other than because it infracts on one of the instruments listed above?

Posted by: Simon | Sep 17, 2005 5:06:11 PM

No, I'm saying that it should not be within the mission of public elementary schools to force a child to declare his/her religious views to his/her peers.
When did we decide that the standard for what goes on in public schools is simply based on contitutional rights?

Posted by: Dman | Sep 17, 2005 4:39:56 PM

The state should not force me to make an open declaration of my religious views, either by chanting "under God" or by abstaining from the pledge, in front of my peers in a public schoolThis seems to be asserting a constitutional right for one's peers not to know what one's religious and/or spiritual proclivities are? Am I understanding you right here?

Posted by: Simon | Sep 17, 2005 4:22:55 PM

Or to put it another way:

The state should not force me to make an open declaration of my religious views, either by chanting "under God" or by abstaining from the pledge, in front of my peers in a public school

Posted by: Dman | Sep 17, 2005 3:34:17 PM

"I wonder if any children have ever embraced God because of semi-forced recitation of the pledge in school."

The point isn't that the pledge, all by itself, led to somebody embracing God. The point is that when religious themes pop up everywhere, including places like elementary schools, it sets being religious as the default, and a person feels like an outsider and outcast from the rest of society if they don't go along with it. That's fine a person wants to explore that side of life, but it doesn't belong in public school.

My own experience of not saying the "under God" part of the pledge as a child was bullying by classmates who noticed.

Posted by: Dman | Sep 17, 2005 3:01:54 PM


If I'm not mistaken, you went to a sectarian school. Is that right? If so, you can hardly compare your experience with that of a child in a public school that recites the pledge every morning. Do I wish that it wouldn't happen? Well, yes. But I repeat: has any child become any more religious as a result of the pledge?

Now teaching creationism in the guise of intelligent design is another matter altogether; not because it teaches children to be religious, but because it warps education.

Posted by: Hillel Levin | Sep 16, 2005 11:59:42 AM

I stayed religious for much longer than I would have if religion hadn't been forced down my throat my entire childhood. Those opportunity costs can never be recovered. In my case, it wasn't the state but my parents. But if the state had been complicit, I'd have suffered real (constitutional) injury.

Posted by: Ethan Leib | Sep 15, 2005 5:13:58 PM

I wonder if any children have ever embraced God because of semi-forced recitation of the pledge in school.

Hey, look, what happens in school obviously isn't very formative. Schools have been teaching evolution for years now, and yet the majority seems to think the world is five thousand years old and dinosaurs never existed. So much for shaping minds, eh?

Posted by: Hillel Levin | Sep 15, 2005 5:08:20 PM

Well, not all those things clearly fail under the Lemon, Endorsement, and Coercion tests; I do believe, however, that the Pledge in grade school does. I believe that the environment of preliminary school is one where students shouldn't be indoctrinated, indirectly or otherwise. That is a doctrinal minimum.

Posted by: Ethan Leib | Sep 15, 2005 3:53:06 PM


Query then about your constitutional view all of the other instances of government recognition of religion? The motto on our currency? The hiring of Senate, Congressional, and military chaplains? Vouchers to sectarian schools? Invocations at governmental events (like the Inauguration)?

I ask because it seems to me that if you believe, as a matter of Establishment Clause jurisprudence, that the words "under God" constitute the establishment of religion, then you must also think that the rest of these activities do as well.

Posted by: MJ | Sep 15, 2005 3:38:40 PM

I'm talking about doctrine over document for these purposes.

Both Rehnquist and O'Connor are pro-God in the pledge; god knows their replacements will feel the same way.

I do agree, however, that it wouldn't be especially wise for the Democrats to sign onto Newdow's agenda. I needn't worry about such political backlash; I'm just expressing my policy preference--and my understanding of what the constitutional doctrine requires, for better or worse. As for what the framers intended, I'm not taking a stand (though I suspect this is a pretty easy case on that score for the Pledge, god and all).

Posted by: Ethan Leib | Sep 15, 2005 2:52:54 PM

2000 - United States Supreme Court ruling hands Republican Party the U.S. Presidency.

2004 - Massachusetts Supreme Court ruling hands Republican Party U.S. Presidency and expanded Congressional majority.

2005 - U.S. District Court for the Eastern District of California hands Republican Party filibuster-proof majority in U.S. Senate.

Posted by: Simon | Sep 15, 2005 2:07:37 PM

"I'm all for picking our battles. But I really do believe that 'ceremonial deism' undermines this country's pledge not to make non-believers feel like outsiders."

Flip comment: As a libertarian (and card-carrying member of the Skeptics Society), I always feel like an outsider - more of an outsider, I'm sure, than people who don't like the Pledge. Get over it.

Not flip at all comment: If I were part of the religious right, the Newdow case would thrill me. Something like 90% of people profess a belief in some "God," and some "activist" "liberal" judge is trying to take God away from them. Just as O'Connor's replacement is about to me named, this case comes down. Perfect timing, though we might ask, Whose Timing is it Anyway?

If I were a liberal, I would not go on record as agreeing with this case. There are other battles to fight. Taking sides in this battle might cost liberals the confirmation war.

Posted by: Mike | Sep 15, 2005 1:52:43 PM

In my experience, it is not 'ceremonial deism' that makes non-believers feel like outsiders. Ceremonial deism is an artifact of a culture that marginalizes non-believers. I'm wondering why it is you think that this country has made any sort of pledge to non-believers. The first amendment doesn't seem to cut it (see Mr. Lindgren's post at VC). And polling data shows consistent support for a nation under God.

Posted by: ac | Sep 15, 2005 1:32:37 PM

At times like this I ask myself, "What Would Flying Spaghetti Monster Do?"


Posted by: The Sardonic Lawyer | Sep 15, 2005 1:18:37 PM

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