'Under God' Held Constitutional in 9th Circuit Pledge Ruling
law.com
law.com
This case had caused a huge uproar in 2002 when Judge Reinhardt had led a panel in striking down the Pledge as unconstitutional. While no politician would defend the decision, the case went up on appeal to the U.S. Supreme Court, which punted on it by holding that the plaintiff, a gadfly lawyer named Newton Minnow, lacked "standing" to bring it - this meant the Court invalidated the decision while avoiding the jurisprudential pit into which it might lead under the Establishment Clause line of cases.
The striking thing that happened here is Mr. Minnow found a qualified plaintiff to renew his attack and saw it head to a friendly panel of the Ninth Circuit that seemed highly likely to invalidate the 'under God' language, with Judge Reinhardt and another leading liberal judge - one who had a track record of striking down laws promoting religion in such contexts and who was a 30-year friend of Judge Reinhardt's - constituting two of the three panelists.
Yet the decision did not go as expected, and it appears that this resulted as much as anything from a pragmatic decision by the second liberal judge on the panel not to want to go against the political headwinds that the case inevitably presented.
I had clerked for a federal court and often saw this sort of thing. Judging may appear "objective" or "disinterested" but, in reality, where a case is politically charged, the politics often affects the outcome - and that appears to be what happened here. Actually, this is somewhat surprising from the Ninth Circuit appeals court, which has a long history of following its own path on such issues (and hence has a historically high reversal rate in the Supreme Court).
Hope this isn't too much "inside baseball" stuff. I think it depicts an interesting reality within our courts that many do not appreciate in taking a mere headline view of such decisions. This piece does a fine job of bringing out the human issues that can so affect the judging process.
Tell me if my impression is accurate. It seems to me that liberal justices, at least the ones I've heard on the Supreme Court, frequently invoke the ramifications of a particular ruling as an importing deciding factor, on par with the actual interpretation of the law. Whereas conservatives seem more concerned with just reading the law's words, and applying them to the case at hand.
Were I required to recite a pledge each morning that included that section I expect I would politely decline :) Trouble is I know Americans who have done that (politely used one of the original versions) and then been accused of not being patriotic and in one case quite badly threatened.
So the Congress opened with a prayer. Most of the founding fathers attended church. Political speeches were, for a very long time, characterized by religious imagery and overtones. Catholics were feared when they started arriving. etc.
The country was about as Christian as it could get -- save for the establishment of a national religion, which everybody knew was a bad idea. But even that was only at a national level. Massachusetts had an established state church for some time after the constitution was signed.
Somehow the idea that the government shouldn't endorse a church has evolved into the idea that the government and church shouldn't have anything at all to do with each other -- probably a good idea but not at all what was intended by the founders.
It's an interesting study on how the same language can be construed in various ways by various generations.
It wasn't as religious as time as other times in United States history. But Christianity was the backdrop for most all deism at that time. Deists picked the parts of the story they liked and left the other parts. Jefferson, for instance, edited his own bible.
John Adams is a good example of the general type of thinking: http://en.wikipedia.org/wiki/John_Adams#Religious_views
Thomas Paine was probably the poster child for atheists among the famous people of that time. He was a real firecracker. Most of the founders, however, were just men of their age, and people of that age attended church and used Christian ideas and imagery extensively.
"All men are endowed by their Creator", etc.
Random Googling brought me to this site: http://www.adherents.com/gov/Founding_Fathers_Religion.html
Perhaps because these men were determined that differences in religion would not be a big deal, they were easily able to have prayer before each meeting without anybody getting offended. I'm pretty sure that the idea of _no_ religion in any kind of government event wouldn't have worked at all for these guys, though. Paine was "out there" and fiercely advocated it -- but he was the exception rather than the rule, and France was the worse for it, probably.
> hese men were determined that differences in religion would not be a big deal
I always see it as a little step further than that. They saw it as irrelevant to the governance of a country.
Perhaps personally atheism wouldn't have sat well with them (and I postulate that atheism was still new then and so not really widely considered) but I doubt it would have worried them to have atheists in government :)
I suspect myself of having somewhat rose tinted specs though :) (the main point, I think, is that I don't believe any of the founding fathers would have burn't atheists at the stake - which is enough)
Faith must be a private thing and not thrown at you by the government.
And by the way ... you are clearly not an atheist :)
You can't be "mostly" atheist. Atheism means: without a god belief. Either you have a god belief, or you don't. If you are unsure then you should classify yourself as agnostic.
I am born into a country founded on faith
I was under the impression the U.S. was founded on freedom.
> Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Requiring the Pledge of Allegiance to the Republic to include affirming a monotheistic God seems a lot like "mak[ing a] law respecting an establishment of religion", which is prohibited.
There are people who are polytheistic and people who are atheists. If taking the Pledge of Allegiance is required for civil service or military service, you're putting them into a rather uncomfortable position.
Edit: I generally dislike the Pledge of Allegiance anyways. If you look at the words - "I pledge allegiance... to the flag... of the United States of America... and to the Republic, for which it stands, one nation, under God, indivisible, with liberty and justice for all" - it's just not particularly well formed. Pledging Allegiance to the flag first, then it's not clear what "the Republic for which it stands is" - who am I pledging allegiance to? To the federal government? To the States? To the federalist federal/state mix? To the idealized version of American values? If there's a conflict between my state and the federal government, who exactly have I pledged my loyalty to? And what is entailed in allegiance? It's just a murky, hazy, not well thought out thing. And we start doing it at five years old or whatever, which is far too young to understand the implications of the Oath of Loyalty that you're taking.
As an example of a much clearer and better oath, here's the United States Marine Corps Oath: "I, (name), do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God." Very clear exactly what you're pledging, to whom, and what your duties are, and who you ask if you're not clear on what your duties are. And Marines take it voluntarily, knowing the weight of what it entails.
Who could logically or in good faith disagree with "under God" as the establisment of a monotheistic religion, with the US flag as its idol?
> "Instead, to the joy or relief, as the case may be, of the two members of the majority, this court's willingness to abandon its constitutional responsibilities will be praised as patriotic," Reinhardt wrote, "and may even burnish the court's reputation among those who believe that it adheres too strictly to the dictates of the Constitution or that it values excessively the mandate of the Bill of Rights."
I had to re-read that once to get it, but wow - zing. What a fantastic way of putting it. "may even burnish the court's reputation among those who believe that it adheres too strictly to the dictates of the Constitution or that it values excessively the mandate of the Bill of Rights" - what a subtle, wonderful criticism.