Newdow Fails

The morning announcements will continue as before.

A little context: Michael Newdow has made a cottage industry over suing various government entitites for using the word “God”.  On Thursday, the 9th Circuit gave him a kick in the teeth over the Pledge of Allegiance.  I obviously have a view (a positive one) about the Court’s opinion, but the case should be of interest to people on both sides of the debate, such as it is.  The key lines, I think, are:

The Supreme Court held that as long as recitation of the Pledge was optional, then the Pledge was constitutional. The same principle applies here.

* * * *

In the context of the Pledge, the phrase “one Nation under God” constitutes a powerful admission by the government of its own limitations.

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Thus, the Court drew an explicit distinction between patriotic mentions of God on the one hand, and prayer, an “unquestioned religious exercise,” on the other. Therefore, we hold the School District’s Policy providing for
the voluntary recitation of the Pledge does not violate the Lee coercion test.

* * * *

We recognize some school children who are unaware of its history may perceive the phrase “under God” in the Pledge to refer exclusively to a monotheistic God of a particular religion. A reasonable observer, however, aware of the history and origins of the words in the Pledge would view the Pledge as a product of this nation’s history and political philosophy.

* * * *

The dissent’s analysis would grant a heckler’s veto to anyone who made just enough noise in support of an enactment so as to defeat an otherwise valid measure. That is not the law.

The majority of the opinion is Reinhardt dissenting.  (Pun intended.)

UPDATE: In other news… the fight against graduation prayers continues on, with the promise of much success.

Comments

  1. Cardinal Fang says:

    Under the majority’s reasoning, because the Pledge as a whole is a patriotic exercise, atheist parents have no reason to challenge the 1954 insertion of the words “under God” in the Pledge. Suppose the school district decided to stick the entire Lord’s Prayer into the Pledge, claiming this to be a justifiable action because the Pledge is a patriotic exercise, and atheist parents objected. The majority’s reasoning would justify that action as well, yet we know that having teachers lead Christian prayers to start the day in public schools was rightly struck down by the Court decades ago. The majority’s reasoning in this case can’t be right.

    If the Supreme Court takes this case, they’ll probably affirm, but they’ll come up with better specious reasoning than this panel.

  2. What Cardinal Fang said.

  3. Michael E. Lopez says:

    Suppose the school district decided to stick the entire Lord’s Prayer into the Pledge, claiming this to be a justifiable action because the Pledge is a patriotic exercise, and atheist parents objected. The majority’s reasoning would justify that action as well.

    I suspect — though I could be wrong — that inserting the Lord’s Prayer would fail the Lee test, and quite possibly run afoul of the Establishment clause as well.

    You see, one of the wonderful things about living in a common law country is that judges get to actually judge. One can look at the Pledge and say, “Gee, I think that isn’t really religious enough to override the normal deference that courts are supposed to show to legislatures and other law-making bodies.” One might look at the Pledge-cum-Lord’s Prayer and say, “Gee… that doesn’t really seem like a patriotic exercise, no matter what you call it. In fact, it sounds sort of like a prayer.”

    Sometimes it’s not an easy call. Sometimes something might be right on the line… one might imagine that the result would be different if just a few words were changed:

    “And the republic for which it stands, one Nation under Our Almighty Christian God, indivisible…”

    Now maybe this passes the Lemon Test and fails the Lee test, or vice versa. (I’m not trying to do a substantive analysis here.) But making such distinctions is why judges go through several different stages in their legal reasoning… because there can be more than one applicable test in a given situation, each test designed to deal with one particular type of problem. There’s a reason the opinion is over 50 pages long, and it’s not because they cavalierly announced a rule that stated “Anything called a patriotic exercise is OK.”

    The Majority’s reasoning is, like most good judicial opinions, decidedly fact-specific. Courts decide cases; they are not supposed to be instruments of legislative power. Saying something like “The majority’s reasoning would justify inserting the Lord’s Prayer” is pretty much ignoring the way in which the judiciary functions, assuming them to be legislators rather than judges.

  4. Cardinal Fang says:

    It’s beyond me why any two judges could imagine that I could sensibly assert that the United States is a nation “under God” without believing that God exists. Apparently the two affirming judges do believe that, but I can’t fathom how.

  5. Michael E. Lopez says:

    Fang-

    The judges are, I think, fairly explicit:

    The phrase “under God” is a recognition of our Founder’s political philosophy that a power greater than the government gives the people their inalienable rights. Thus, the Pledge is an endorsement of our form of government, not of religion or any particular sect. (pp. 3921-3922)

    I believe that the idea is that the preposition “under” is to be taken to mean “founded under” — which is a perfectly legitimate interpretation.

    It’s not as if anyone saying that thinks that God is, like, sitting on top of the US and that we’re literally “under” him. The reading has to be metaphorical.

    Thus, we can accept that the US was founded “under God” in the sense provided without necessarily believing in God ourselves.

  6. Cardinal Fang says:

    That’s the explanation the judges give, sure enough: “under God” means “established by people who believed in God.” Hard to find anything more transparently bogus than that explanation, though. Moreover, “established by people who believed in God (but the person now reciting the Pledge might not believe in God)” was assuredly not the meaning intended by the clergymen who initially inserted the phrase in the Pledge, nor the vociferously religious legislators who in 1954 legally stuck the phrase in the Pledge.

  7. Mark Roulo says:

    “If the Supreme Court takes this case, they’ll probably affirm, but they’ll come up with better specious reasoning than this panel.”

    I’m pretty sure that you can do anything you want if you invoke the interstate commerce clause :-).

    -Mark Roulo

  8. Corsair the Rational Pirate says:

    So if the Founders were so vociferous in their “political philosophy that a power greater than the government gives the people their inalienable rights” then how come they didn’t say “Under God ” in any of their legal documents (ignoring what they believe in the comfort of their own church). I know they threw in “Creator” here in there but that isn’t very specific (could have been Mother Nature…)

    This goes to the whole “Christian Nation” thing that keeps getting brought up as well. Where is Christ mentioned in the Declaration or the Constitution or the tax code for that matter? How about nowhere. The Founders had more than enough time to add his name in at the beginning of the country. That they didn’t seems like a statement in itself.

  9. Bill Leonard says:

    People, I begin to sense that some of you are blathering on in order to read your own words.

    Go back and take a close look at Mr. Lopez’s first sentence in the “a little context” paragraph.

    Those of us who are Californians have watched Newdow for several years now. He has caused a fair amount of public money to be spent on behalf of his own vanity, which is what his cottage industry is about. This, after all, is a man who is a medical doctor who became an attorney to, in his own words, “clean up the medical profession.” And then he seems to have discovered the word “God”.

    Frankly, the man is a crank. There may or may not be a court case around “one nation, under God” in the pledge. But Newdow still is a crank.