Back to the Future on the Pledge
Posted on September 16, 2005
Now that Judge Lawrence Carlton ruled on Wednesday, September 14th, that the words “under God” are unconstitutional in the Pledge of Allegiance as recited in public schools, it is worthwile to go back to the legal reasoning that led us here. For what it’s worth, Judge Carlton was correct when he said that he had to follow the precedents set by the 9th Federal Circuit in the Newdow case back in 2003, since the US Supreme Court, when it took the case, failed to rule on its merits but instead “punted” on the basis of the doctrine of standing.
So what is the precedent that the latest federal judge to strike down the Pledge of Allegiance is bound by? For that we have to go back to the old Newdow case and actually read what it says. As I wrote about it at the time at CourtZero, here is the way that the legal reasoning came down:
In several cases, named Newdow I and Newdow II, and Elk Grove United School District v. Newdow, the federal court decided that including the words “under God” in the pledge of allegiance, as recited in public schools, is unconstitutional. It is interesting for two reasons, first that the courts really have no idea what reasoning to apply when finding the word “God” abhorrent. Any reasoning will do:
“We are free to apply any or all of the three tests, and to invalidate any measure that fails any one of them. Because we conclude that the school district policy impermissibly coerces a religious act and accordingly hold the policy unconstitutional, we need not consider whether the policy fails the endorsement test or the Lemon test as well.”
Why do the courts have a wide range of options for invalidating religious expression? Can’t the courts just pick one so we know how to defend ourselves? Second, the Court declares that words that suggest a belief in no god are also unconstitutional:
“A profession that we are a nation under God is identical, for Establishment Clause purposes, to a profession that we are a nation under Jesus, a nation under Vishnu, a nation under Zeus, or a nation under no god, because none of these professions can be neutral with respect to religion.”
Understand what that means. Even professing no belief at all is not “neutral” with respect to religion. The men and women in the black robes, in all of their wisdom and learning, have done us the favor of imparting the revelation that believing in no god is the same thing as believing in some god, and that none of that is permissible in school. What real societal or governmental interest are they serving with this opinion?
» Filed Under ACLU, Church And State
Trackback URL
Comments
2 Responses to “Back to the Future on the Pledge”
-
Affiliations
The Giants
-
Advertise
Donate
Our Store
Click the design to visit our store and help Stop the ACLU!
Stop the ACLU blogburst
-
More blogs about the ACLU
Syndicate Me
Sounds like lawyer talk to me. They don’t leave any precedence. I don’t think it matters so much anymore other than precendent. Parents teach your children the pledge with God, tell them to say it anyway. If the schools try to stop them from adding it in, then this will clearly be a case where religious speech is being repressed.
Establishment clause, blah blah blah. Isn’t it interesting how the court ignores Free Speech in the process? What if a student *wants* to say the Pledge, complete with “Under God”?