Supreme Court Upholds Pledge... for the moment.

2

Comments

  • Reply 21 of 47
    trick falltrick fall Posts: 1,271member
    What a pussie assed decision. I think they did it because Scalia had to recuse himself, wimps.
  • Reply 22 of 47
    curiousuburbcuriousuburb Posts: 3,325member
    PBS News Hour just ran a segment on the Pledge case.



    The law professor they had on basically agreed that they dodged the issue of the pledge itself this time by dismissing the case based on Standing without an outright majority finding in favour of the pledge (only 3 wrote explicitly that is was constitutional).



    The end of the segment finished by noting at least 3 other challenges are in the legal pipeline.

    Didn't mention which states they were from or if the issue of Standing will be a similar obstacle.



    The money was more meaningful with 'E Pluribus Unum' anyway.
  • Reply 23 of 47
    objra10objra10 Posts: 679member
    Quote:

    t's probably because the Supreme Court doesn't like to defer its decesion making processes to lower courts. In this instance, Scalia recused himself thus there was a 3-3 deadlock on the issue of the "in god we trust". When the SC is deadlocked, the original ruling stands, thus it was a face saving ruling to prevent a SC decision from being dictated by a lower court. Another thing, this is an election year. Historically, the SC has put off emotional decisions like this to non-presidential election years. Give it a year before another case begins to work through the system.



    First of all, there are 9 members on the supreme court, not 7, so there would never be a 3-3 tie unless 3 members recused themselves, not just one. Second, if there were three justices that felt the phrase withstands constitutional challenge, we know nothing about the position of the others since the opinion by Justice Stevens doesn't address the issue.



    Secondly, the Supreme Court doesn't decide cases on emotion, it decides them on law.. that's why they have life tenture as so not to be effected by public sentiment.





    Further - to BRUSSELL



    The reason the Supreme Court did not address the issue is because it was not before them. The School and the United States appealed the 9th Circuit ruling on the GROUNDS that Newdow had no standing to file suit, not on the grounds that the phrase was constutional. The original court ruled that the phrase was constitutional. The District Court concurred.



    The Ninth Circuit specifically reversed saying that Newdow has standing, and that he has an interest in protecting his dauther from practices that interfere with his right to direct his daughters religious education. They also ruled that the pledge violates the Establishment Clause.



    The child's mother then intervened by filing a motion to dismiss on the grounds that she has sole legal custody, and that the father had no standing to sue.



    This is the issue on which the court ruled today.



    (edit: typo... [un]constitutional)
  • Reply 24 of 47
    shawnjshawnj Posts: 6,656member
    Hey, OBJRA10-- thanks for clarifying that for us all. I think your comments put the case in much clearer perspective. Have you spoken to any of your UMich Law School colleagues about the Newdow case or the "Pledge" cases in general? If so, what seems to be the prevailing opinion, if any?
  • Reply 25 of 47
    faust9faust9 Posts: 1,335member
    Quote:

    Originally posted by OBJRA10 First of all, there are 9 members on the supreme court, not 7, so there would never be a 3-3 tie unless 3 members recused themselves, not just one. Second, if there were three justices that felt the phrase withstands constitutional challenge, we know nothing about the position of the others since the opinion by Justice Stevens doesn't address the issue.



    yeah, yeah, yeah. It's been a while since I've taken a government class. In any event, the case was probably split 4-4.
  • Reply 26 of 47
    brussellbrussell Posts: 9,812member
    Quote:

    Originally posted by OBJRA10

    Further - to BRUSSELL



    The reason the Supreme Court did not address the issue is because it was not before them. The School and the United States appealed the 9th Circuit ruling on the GROUNDS that Newdow had no standing to file suit, not on the grounds that the phrase was constutional.




    The constitutional issue was before them if they found that Newdow had standing to bring the case. Rehnquist, O'Connor, and Thomas said that Newdow did have standing, and then gave an opinion on the constitutionality of the pledge. In other words, Stevens along with the 4 others punted, and the other three took the ball and ran with it. Here's what R, O, and T said:

    Quote:

    The Court today erects a novel prudential standing principle in order to avoid reaching the merits of the constitutional claim. I dissent from that ruling. On the merits, I conclude that the Elk Grove Unified School District (School District) policy that requires teachers to lead willing students in reciting the Pledge of Allegiance, which includes the words "under God," does not violate the Establishment Clause of the First Amendment.



    They then go on to say that the majority's decision to avoid the question was unnecessary, that Newdow did have standing to bring the case, and that the constitutionality of the question should have been decided.
    Quote:

    The original court ruled that the phrase was unconstitutional. The District Court concurred.



    I think you mean to say that the original court ruled that the phrase was constitutional, the district court agreed, and then the appeals court ruled it was unconstitutional?



    Quote:

    The Ninth Circuit specifically reversed saying that Newdow has standing, and that he has an interest in protecting his dauther from practices that interfere with his right to direct his daughters religious education. They also ruled that the pledge violates the Establishment Clause.



    The child's mother then intervened by filing a motion to dismiss on the grounds that she has sole legal custody, and that the father had no standing to sue.



    This is the issue on which the court ruled today.



    Right. But they could have ruled he had standing, like the minority of R, O, & T did, and then ruled on the constitutionality of the issue. Agreed?



    It also makes me wonder if the majority perhaps would have ruled the pledge unconstitutional, but maybe they just didn't want to stir the hornet's nest, especially in the middle of an election. I don't know, maybe they genuine believed the dad didn't have standing. But with those liberals all on one side like that, it makes me suspicious.
  • Reply 27 of 47
    shetlineshetline Posts: 4,695member
    Quote:

    Originally posted by OBJRA10

    Secondly, the Supreme Court doesn't decide cases on emotion, it decides them on law.. that's why they have life tenture as so not to be effected by public sentiment.



    Ideally the Supreme Court, as well as any other judicial body, applies the law and the Constitution without regard to public sentiment or political considerations.



    Ideally.



    In the real world? Come on. Of course such things influence judges.



    Public sentiment obviously favors God in the pledge. This is one reason why small encroachments on the separation of church and state can be so insidious: The vast majority of the public is terrible, I'm sorry to say, at separating emotion from important legal principles.



    Once God is in the pledge, very few politicians, regardless of how they really feel, are going to want to speak out on principle against "One nation, under God", because they know their opponents can easily whip up mindless emotionality against them, and they'll be treated as if they were (gasp!) Evil Incarnate Standing in Defiance of God Himself.



    Saying that you're against God in the pledge is not a winning campaign strategy in the good 'ol US of A.



    As for judges, they might be appointed for life, but a lot of them, especially on the Supreme Court, care very passionately about who will replace them when they're gone.



    So, let's suppose the majority on the Supreme Court don't care for "One nation, under God". What would happen if they ruled against it right now? Public outrage just before an election. Who would this outrage benefit? Bush, of course. What kind of Justices would Bush be likely to replace aging members of the Court with, given another four years? Not likely the kind who are strict about separation of church and state.



    So, what to do? Stall on the pledge decision, at least until after the upcoming election is over. I'd don't know this is what really happened here, but I'd say that this is not an unlikely scenario.
  • Reply 28 of 47
    brussellbrussell Posts: 9,812member
    Quote:

    Originally posted by shetline

    Saying that you're against God in the pledge is not a winning campaign strategy in the good 'ol US of A.



    Yeah, let's all take a microsecond and wonder what John Kerry's position on this would be.



    [edit] Especially given how the last Democratic presidential candidate from Massachusetts running against a George Bush did on the same issue.
  • Reply 29 of 47
    objra10objra10 Posts: 679member
    Quote:

    think you mean to say that the original court ruled that the phrase was constitutional, the district court agreed, and then the appeals court ruled it was unconstitutional?



    yeah, I unedited my editing



    Quote:

    Right. But they could have ruled he had standing, like the minority of R, O, & T did, and then ruled on the constitutionality of the issue. Agreed?



    Not entirely. There was no dissent on this case. The vote was unanimous (absent Justice Scalia). The threefold opinion of Rehnquist, O'Conner and Thomas was concurrent with the opinion of Stevens, however Rehnquist obviously desired a further decision regarding the constitutional question. I agree that had they found he had standing, they could have considered the issue of constitutionality however the issue wasn't yet ripe for decision.



    They couldn't decide he had no standing and then decide on the constitutionality of the issue. Without concurring with the appeals court, there was no further issue at hand. Mr. Newdow spent the majority of his Merits Brief on this issue, and almost none of the issue of standing, but the writ of certorari was based mostly on the issue of standing. The constitutional question was secondary.



    Most cases before the Supreme Court are decided on nuance, not on larger issues.



    The issue will become ripe when someone with standing files suit.



    Quote:

    So, what to do? Stall on the pledge decision, at least until after the upcoming election is over. I'd don't know this is what really happened here, but I'd say that this is not an unlikely scenario.



    Except that the court made the right decision on the issue at hand - standing.



    Quote:

    This is one reason why small encroachments on the separation of church and state can be so insidious



    In matters of law, it's better to stick to legal foundation, and not to rhetoric. "separation of church and state" isn't a phrase that appears anywhere in the constitution and is therefore not a valid arguement with regards to the Establishment Clause. The EGUSD policy on patriotic exercises does not in any way set forth the establishment of a state "religion."
  • Reply 30 of 47
    objra10objra10 Posts: 679member
    Quote:

    Have you spoken to any of your UMich Law School colleagues about the Newdow case or the "Pledge" cases in general? If so, what seems to be the prevailing opinion, if any?



    In general, I'm a much more conservative law professor than most. I don't mean that in terms of left wing/right wing, but rather in terms of position of the constitution. Many of my fellows are much more liberal in terms of their interpretation of the constitution. I believe that the constitution means what it says, no more.



    With that said, it's a fairly even split on the issue of constitutionality, but almost unanimous on the issue of lack of standing.
  • Reply 31 of 47
    shetlineshetline Posts: 4,695member
    Quote:

    Originally posted by OBJRA10

    In matters of law, it's better to stick to legal foundation, and not to rhetoric. "separation of church and state" isn't a phrase that appears anywhere in the constitution and is therefore not a valid arguement with regards to the Establishment Clause. The EGUSD policy on patriotic exercises does not in any way set forth the establishment of a state "religion."



    Our legal foundation includes judicial interpretation of both the letter and the intent of our laws and of the Constitution. Our legal foundation includes concepts like separation of church and state which, while that exact phrase does not appear in the constitution, is a concept with a long history of application in judicial precedent.



    If you were to be ridiculously strict about the wording of the Constitution, you'd have to say that no form of free expression is guaranteed protection except spoken and printed words. You could even go further and say that printed words are only protected if they are reproduced using a mechanical press -- because that is what the word "press" referred to at the time of the writing of the Constitution.



    On the other hand, I'm much happier that the history of judicial precedent hasn't been so foolishly narrow, and that rights of free expression are protected in other media -- such as the electronic messaging we're using right now.



    When it comes to the establishment clause, a ridiculously strict interpretation would say that it would be perfectly fine for a law to be passed requiring all government officials and employees to swear that "Jesus Christ is my Lord and Savior".



    How could that be perfectly fine?



    While the First Amendment forbids the federal government from "prohibiting the free exercise" of religion, there's nothing that says that all citizens must be eligible for public office or government employment. So, sure, you can practice any religion you like, but you might not be allowed to work for the government because of that choice. The government wouldn't be restricting your right to practice your religion, just what you can do in addition to practicing your religion. Forcing someone to choose between A and B is not strictly the same as prohibiting B, if one can say A is not also a right, is not a necessary or required option in a person's life.



    Also, if we're being ridiculously strict, making people swear that "Jesus Christ is my Lord and Savior" doesn't establish a particular religion. There are many, many religions -- different denominations and sects -- for which that oath is applicable. There are many people who would swear this and yet say "I don't have a religion. I don't even like religion. I have a personal relationship with Jesus."



    Considering the possible problems with being too strict in interpreting the establishment clause in too narrow a way, I think it's quite reasonable and helpful for judges to broadly interpret "establishment" as any sort of governmental favor, bias, or endorsement, and for "religion" to mean any broadly religious or spiritual concept, including such things, implied by a phrase such as "one nation, under God", as the existence, and the supremacy, of a divine power.
  • Reply 32 of 47
    midwintermidwinter Posts: 10,060member
    Don't forget the absence of any explicit expression of a right to privacy in the Constitution.
  • Reply 33 of 47
    talksense101talksense101 Posts: 1,738member
    Quote:

    Originally posted by Carson O'Genic



    I think a genuine love of the freedoms and opportunities of this country comes from learning history, civics and by understanding how things are diffferent in many parts of the world around us. This takes years of life and schooling, and some dumb little pledge is a very poor substitute.




    I am not an American. But the reason we have a pledge in our school system is to enforce and encourage discipline of sorts. I don't think it would be right to expect our children to grow up and decide on what is right and what is wrong all by themselves. They need guidance at least in the early years of their lives. When they get sufficient knowledge to make their choices later on in life, they can do as they please. Until such time, who should they pledge their allegiance to? Their parents or the president? I think a figure head representing good things is best.
  • Reply 34 of 47
    midwintermidwinter Posts: 10,060member
    Quote:

    Originally posted by talksense101

    I am not an American. But the reason we have a pledge in our school system is to enforce and encourage discipline of sorts. I don't think it would be right to expect our children to grow up and decide on what is right and what is wrong all by themselves. They need guidance at least in the early years of their lives. When they get sufficient knowledge to make their choices later on in life, they can do as they please. Until such time, who should they pledge their allegiance to? Their parents or the president? I think a figure head representing good things is best.



    why should they pledge their allegiance to anyone before we even allow them to DRIVE? Or, more importantly, VOTE?
  • Reply 35 of 47
    neoneo Posts: 271member
    Quote:

    Originally posted by midwinter

    why should they pledge their allegiance to anyone before we even allow them to DRIVE? Or, more importantly, VOTE?



    i agree



    when i'm at school, i usually pledge allegiance, but i don't say the "under God" part.



    -Neø
  • Reply 36 of 47
    talksense101talksense101 Posts: 1,738member
    Quote:

    Originally posted by midwinter

    why should they pledge their allegiance to anyone before we even allow them to DRIVE? Or, more importantly, VOTE?



    First-century Christians were fed to lions because they refused to pledge allegiance to the Roman Republic and participate in emperor worship?to pledge themselves to the Empire?s agenda.



    You need to promote the well-being of whatever country you call home. Pledges serve to reinforce that thought. Using God as a symbolic reference for good things is tolerable. Who would you rather pledge your allegiance to? The bigger question would be to figure out what allegiances are appropriate in life and what are the appropriate limits of allegiance to a republic.



  • Reply 37 of 47
    sdw2001sdw2001 Posts: 18,015member
    I won't get into a 10,000 word reply on the particulars of the case, except to say that yes, they did dodge the issue.



    On the First Amendment:



    I am constantly amazed at what has become our First Amendment rights. The First Amendment was added protect the expression of religion and prevent an official state religion from being established. It was never intended to remove God from all public life or prevent certain groups from being offended. The words "Separation of Church and State" do not appear anywhere in the Constitution or its amendments, by the way.



    Removing all references to God from public life is completely misguided. This includes prayer in public school, "In God We Trust", and the Pledge of Allegiance. This state of affairs was never intended by any of the Constitution's framers. While not all Christians, most were profoundly religious men. Religious freedom was the very reason the thirteen colonies were founded.



    I am a Christian, but not an evangelical one. I consider religion a fairly private thing. However, I now feel the pendulum has swung the other way. The First Amendment is being used take away rights of expression instead of protect them. I find it amazing the Left, in its oppositon to a gay marriage amendment on those very grounds, could argue the position it does on this issue.
  • Reply 38 of 47
    pfflampfflam Posts: 5,053member
    Quote:

    Originally posted by talksense101

    First-century Christians were fed to lions because they refused to pledge allegiance to the Roman Republic and participate in emperor worship?to pledge themselves to the Empire?s agenda.



    You need to promote the well-being of whatever country you call home. Pledges serve to reinforce that thought. Using God as a symbolic reference for good things is tolerable. Who would you rather pledge your allegiance to? The bigger question would be to figure out what allegiances are appropriate in life and what are the appropriate limits of allegiance to a republic.




    You are actually using the persecution of Christians by Rome AS A SUPPORT for your argument to pledge to the flag!!!



    Didn't that even come close to entering your mind as a bit suspicious?



    After all, Rome was an absurd bureacratic Imperialistic tyrany at that point in its history.



    I don't want my daughter pledging her allegiance to an abstraction that is completely without specificity except for the fact that we are Under It . . so completely abstract and amorphous that it is without meaning, except for that "being dominated by" implied in 'under'. . . so why should she pledge herself to somethng without specific content except obescience?!?!
  • Reply 39 of 47
    pfflampfflam Posts: 5,053member
    Quote:

    Originally posted by SDW2001

    Removing all references to God from public life is completely misguided. This includes prayer in public school, "In God We Trust", and the Pledge of Allegiance.



    You are wrong, absolutely wrong.



    We do NOT live in a religious state!!! We DO NOT have to have prayer in school, do not have to 'tolerate' sanctioned peer-pressure-prayer in schools, in court in Public life . . .

    Many many many US citizens are NOT Christians!!!

    Many of those non-Christians are NOT EVEN THEISTS!!



    There is NOTHING misguided about it .



    If God is in Public life, in Governement and schools, then you are risking the loss of you own religion.

    Our country was founded on freedom of religion: which implies, freedom from state religion.



    Quote:

    Originally posted by SDW2001

    This state of affairs was never intended by any of the Constitution's framers. While not all Christians, most were profoundly religious men. Religious freedom was the very reason the thirteen colonies were founded.

    .




    You contradict yourself, but because you think that arguing for G-d in Public life is what you are supposed to do as a good Christian you don't see it.

    Religious Freedom: if your child had to say a prayer to Vishnu before each class, then your child would feel the coercion of religious pressure . . . if Vishnu worshippers congregated in the halls, with official sanction to pray and chant, then your child would not be free from religion: If we had large statues of Vishnu in public parks or in court-rooms then you would be feeling the state sponsored coercion to evolve from limited monotheism into a vastly more subtle and profound Pantheism . . . and that would be coercion.



    Our Constitution's framers emphatically were AGAINST G-d in Public life. There was an EM{HATIC refusal to have G-d on Money . . .that did not come for many years.

    You are wrong to read your desires into the Framer's minds: especially when they are on record as being rabidly anti-authoritarian, individualistic and anti-religious-coercion.
    Quote:

    The Christian god can be easily pictured as virtually the same as the many ancient gods of past civilisations. The Christian god is a three-headed monster; cruel, vengeful and capricious. If one wishes to know more of this raging, three headed beast-like god, one only needs to look at the calibre of the people who say they serve him. They are always of two classes: fools and hypocrites."

    -----(Thomas Jefferson)



  • Reply 40 of 47
    curiousuburbcuriousuburb Posts: 3,325member
    Quote:

    Originally posted by pfflam

    You are wrong, absolutely wrong.



    We do NOT live in a religious state!!!




    -----

    The Christian god can be easily pictured as virtually the same as the many ancient gods of past civilisations. The Christian god is a three-headed monster; cruel, vengeful and capricious. If one wishes to know more of this raging, three headed beast-like god, one only needs to look at the calibre of the people who say they serve him. They are always of two classes: fools and hypocrites."

    -----(Thomas Jefferson)



    edit: <braincramp removed>



    Nice quote
Sign In or Register to comment.