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post #161 of 167
perhaps you're right... I apologize.

But I must say that the snap reactions of so many politicians who are obviously posing for the sake of their constituancy really gets my rile up. The picture of them jumping up and reciting en masse shows a defensive non-thinking reaction that also seems a little eager for the camera lens and opportunistic . . . I think it's to them I meant to refer.
"They never stop thinking about new ways to harm our country and our people, and neither do we."
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--Franklin Miller.

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"They never stop thinking about new ways to harm our country and our people, and neither do we."
--George W Bush

"Narrative is what starts to happen after eight minutes
--Franklin Miller.

"Nothing...

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post #162 of 167
[quote]Originally posted by pfflam:
<strong>perhaps you're right... I apologize.

But I must say that the snap reactions of so many politicians who are obviously posing for the sake of their constituancy really gets my rile up. The picture of them jumping up and reciting en masse shows a defensive non-thinking reaction that also seems a little eager for the camera lens and opportunistic . . . I think it's to them I meant to refer.</strong><hr></blockquote>

Fair enough. And I agree.
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post #163 of 167
[quote]It can just as easily be argued that any ruling against using phrase "under God" while reciting the Pledge is a free-speech violation.<hr></blockquote>

Well, since the rulings don't forbid anyone from saying anything, it can't be argued.

Well, it can be argued by someone who doesn't have any other straws left to grasp but it doesn't hold any water at all.

[quote]Or a violation of the free expression clause.<hr></blockquote>

How?

[quote]Read the whole Constitution not just the parts that make you feel good.<hr></blockquote>

Like what?
(I've read the whole Constitution. Had to do it in high school and again last semester for a constitutional law history class.)
proud resident of a failed state
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post #164 of 167
[quote]Originally posted by groverat:
<strong>
Well, since the rulings don't forbid anyone from saying anything, it can't be argued.</strong><hr></blockquote>

Then what does the ruling accomplish? You say that even though the law already prohibited people from being forced to say the pledge there's still an establishment problem. The plaintiff specifically complained about what was said in the presence of his daughter. What's the remedy? People are arguing that the words "under God" should be removed. What do you think that is if it's not regulating speech?

The only reason that this is being treated like a First Amendment issue is because the courts in recent years have expanded the meaning of the establishment clause. This ruling is not consistent with the understanding of that clause that prevailed when the Constitution was written.
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post #165 of 167
[quote]Then what does the ruling accomplish?<hr></blockquote>

It overturns the 1954 law that put "under God" in the Pledge of Allegiance, which is a violation of the establishment clause.

[quote]You say that even though the law already prohibited people from being forced to say the pledge there's still an establishment problem.<hr></blockquote>

Yes, because the official text of the PoA includes "under God" in such a way that the speaker is subjecting himself to that god.

[quote]The plaintiff specifically complained about what was said in the presence of his daughter. What's the remedy? People are arguing that the words "under God" should be removed. What do you think that is if it's not regulating speech?<hr></blockquote>

There is nothing in the ruling saying "you can't say 'under God' when you say the Pledge of Allegiance". There is NOTHING in the ruling or anywhere else prohibiting saying "under God", that is not regulating speech.

The court weighed the 1954 act and found it to be unconstitutional.

[quote]The only reason that this is being treated like a First Amendment issue is because the courts in recent years have expanded the meaning of the establishment clause.<hr></blockquote>

Recent years?
The court has long held these types of things to be in violation of the establishment clause. Why do you think they don't teach Bible stories in schools anymore?

Do you consider 1943 to be "in recent years"?
How about 1925?

[quote]This ruling is not consistent with the understanding of that clause that prevailed when the Constitution was written.<hr></blockquote>

Examples of how you come to this conclusion?
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post #166 of 167
[quote]Originally posted by spaceman_spiff:
<strong>

Not sure what beer's point is but it wouldn't have anything to do with this. The phrase "separation of church and state" is not in the Constitution.</strong><hr></blockquote>

I was sleeping at the switch on that one.
Sufficiently chastened, I am,
Thoth
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post #167 of 167
Here's a little caselaw for you interested fellows. As an attorney, I honestly have NO IDEA how the Supremes will go with this one if they grant cert on it.
Here's why:
In 1983, in Marsh v. Chambers, the Court upheld a tradition of the Nebraska Legislature to open every session of that body with prayer even though it was the same denomination every year for 16 years and his salary was paid for by the State. There, the court stated:

"In light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of opening legislative sessions with prayer has become part of the fabric of our society. To invoke Divine guidance on a public body entrusted with making the laws is not, in these circumstances, an "establishment" of religion or a step toward establishment; it is simply a tolerable acknowledgment of beliefs widely held among the people of this country. As Justice Douglas observed, "[w]e are a religious people whose institutions presuppose a Supreme Being." Zorach v. Clauson, 343 U.S. 306, 313, 72 S.Ct. 679, 683, 96 L.Ed. 954 (1952)."

Now, as per CJ Burger's usual, there's precious little analysis in there, especially with respect to what constitutes "acknowledgment" vs. "establishment." It's ipse dixit and sophistry (whether or not its right from a legal standpoint). I have not read Zorach v. Clauson, so I don't know if that quote is taken out of context or not.

BUT, this is not a case that seems to have a lot of legs, to wit:

"Our previous opinions have considered in dicta the motto and the pledge, characterizing them as consistent with the proposition that government may not communicate an endorsement *603 of religious belief. Lynch, 465 U.S., at 693, 104 S.Ct., at 1369 (O'CONNOR, J., concurring); id., at 716-717, 104 S.Ct., at 1382 (BRENNAN, J., dissenting). We need not return to the subject of "ceremonial deism," see n. 46, supra, because there is an obvious distinction between creche displays and references to God in the motto and the pledge. However history may affect the constitutionality of nonsectarian references to religion by the government, [FN52] history cannot legitimate practices that demonstrate the government's allegiance to a particular sect or creed.

FN52. It is worth noting that just because Marsh sustained the
validity of legislative prayer, it does not necessarily follow that practices like proclaiming a National Day of Prayer are constitutional. See post, at 3143. Legislative prayer does not urge citizens to engage in religious practices, and on that basis could well be distinguishable from an exhortation from government to the people that they engage in religious conduct. But, as this practice is not before us, we express no judgment about its constitutionality."
This comes from a case called County of Allegheny v. ACLU

Whether the Court will consider Congress' joint resolution establishing the text of the pledge a historical practice constituting "ceremonial deism" rather than an exhortation to observe some type of belief system based on the divine is far from clear, as you can see. Its interesting to see how the Court distinguishes the motto and PoA in the text and then seems to abolish it in a footnote. Classic.
Just food for thought
Thoth
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