Newdow's Revenge

Julian Sanchez | September 14, 2005

As one of the inquisitors at the Roberts confirmation hearing mentioned a little while back, Michael Newdow, the atheist who last year got a talk-to-the-gavel-cause-the-robe-ain't-listening from the Supreme Court when he challenged the inclusion of the words "under god" in the Pledge of Allegiance, has won in a district court representing two other families raising the same claim. (Whichever imbecile is speaking now just interpreted the ruling as meaning that it violates the Constitution "when an American recites the Pledge"—as opposed to government employees reciting it daily in a government funded and operated school.) James Joyner at Outside the Beltway adds:

Except that ruling was made by a three judge panel and the 9th Circuit as a whole overruled it and SCOTUS ruled the father had no standing.

Now, as I understand the history of the case, the 9th circuit didn't rehear the case en banc; the original panel just issued a stay pending Supreme Court review, and that the Supremes ruled Newdow lacked standing has no bearing on his representing these other families.

I agree with the decision, but this seems like a bad hill to die on. Under a standard that prohibits state endorsement of any particular religious belief (or of religion over unbelief), which strikes me as the right one, this ought to be an easy call, especially given the legislative history of the insertion of the phrase "under god". But given where public opinion on this stands—and the opportunities for demagoguery against "unelected judicial tyrants" it affords—I have no real confidence of courts up the chain making the right call here. Which risks sacrifing a perfectly good legal principle that, at the end of the day, isn't a particularly big deal. If this stands, I'll be pleased, but very, very surprised.

Comments

Marty F.|9.14.05 @ 4:02PM|#

Wrong hill to die on - I like that. I agree. Tactical victory, strategic loss. This will really work the wingers into a warm lather.

ed|9.14.05 @ 4:03PM|#

When I was a kid my 6th grade teacher forced us to recite the Pledge, but he had us omit the God part. It was just "one nation indivisible..."
Whether he was a rebel, a closet atheist, or simply clueless, I'll never know. But I do know we were never nuked and the world did not end.

|9.14.05 @ 4:11PM|#

This seems to me another case where the verdict should be a no-brainer, but too many people think it isn't a big deal and why bother.

But to me the question comes down to, do we respect the rule of law and the Constitution or are we just a bunch of monkeys hanging from trees flinging crap at one another.

Whether it's a "strategic loss" or not is irrelevant. I believe a lack of fighting against government endorsed religion is a strategic loss. The Supremes dodged this question the first time around, this time though I doubt they will be able to dodge it, and it will be time for justices to put their money where their mouth is. Its easy to pay lip service to the belief that constitutional protection on the exercise of religion is not only to protect religious minorities, but also nonbelievers. This case should seperate those who really believe that from those who are posers

|9.14.05 @ 4:13PM|#

Not only does the school force my kids to recite the pledge, they also have to recite a pledge of allegiance to the state of Texas every morning. This boils my libertarian blood. I do not want my kids to be forced by law to worship the state or the god that has been officially endorsed by the state.

This is another reason that assholes like Tom DeLay and George Bush are elected by huge majorities in Texas. The daily brainwashing of these impressionable young minds is bound to take a toll. We pay outrageous taxes for education, and instead our children receive inculcation.

|9.14.05 @ 4:14PM|#

I guess we know what all the "conservative" squawk radio mediocrities will be ranting about for the next week or so (not that the liberal squawkers are any better)...

R C Dean|9.14.05 @ 4:15PM|#

Well, the whole Pledge thing is obnoxious. A jackboot's wet dream. The inclusion of the Bad Word "God" neither adds nor subtracts from its obnoxiousness.

If you could ask the Founders what they think of the whole kerfuffle, after they got done being astonished at the notion that the state is schooling everyone, I seriously doubt they would single out the Bad Word as a reason to ditch the pledge.

keith|9.14.05 @ 4:19PM|#

inculcation

Son, they teach you words like that in public school? I think what you meant to say was "We pay glorious taxes for education, and every soldier is a hero!"

|9.14.05 @ 4:24PM|#

All school is is a way to train our children to be workforce drones. Sit still, be quiet, get permission before you speak, do your work on time, take some of it home with you, etc. Fuck public schools.

I was such a little bastard, I would rarely say anything during the pledge, although I would stand and put my hand over my heart. I've always hated being told what to do.

|9.14.05 @ 4:39PM|#

I've never understood the pledge being to the flag first and the republic for which it stands second.

|9.14.05 @ 4:41PM|#

My 12th grade English teacher called me "a pinko commie liberal" for arguing that the "Under G-d" in the pledge should be dropped. I've always found that a bizarre badge of honor, though I've never been commie in the slightest. The legislative history on the thing ought to make this argument a slam dunk for any reasonable person.

I also dispute the "wrong hill" idea. If you know something is wrong and you simply let it be and thus your principle dies, how can you argue that the courts likely ruling badly is any worse? The result is the same in either case, but this way at least there's a record of the dissent.

|9.14.05 @ 4:44PM|#

Frankly I don't understand how you give allegiance to a flag. I mean I like the flag and all and I get a sort of warm feeling when I see it coming back from out of the country.

But it's just.....I dunno, I just don't get it.

|9.14.05 @ 5:20PM|#

Jim Walsh:

Some pretty good unintentional comedy on that Lars Larson link. I love the photo with the cigar (very Limbaugh) and the "I'm pointing at the camera so you know I'm a force to be reckoned with" pose. And this bit from his bio:


Much to his wife Tina�s delight, Lars has picked up several dozen awards, including a couple of television Emmy�s and a Peabody.


Are we to assume that after she dusts the awards in heels and pearls, she stands back and gazes at them in loving admiration?

|9.14.05 @ 5:25PM|#

My favorite part of this imbroglio is the response of the under-God supporters.

The last time around, the Administration's official legal argument was that the term "God" was not the Big Cheese in the Judeo-Christian sense of the title. Instead, the term "God" was broad enough to encompass any broad concept that the pledger wished to project upon the term.

Now, it is a fundamental philosophical principle that a word that can mean anything, in truth, means nothing.

Basically, the Bush Administration went to court and argued that God has no meaning. It's hard not to be at least a little amused.

|9.14.05 @ 5:37PM|#

From one of the linked articles:

In 1956 it made the same four words ["in God we trust"] the nation's official motto, replacing "E Pluribus Unum."

Really??? I had no idea. That sickens me. As someone who held his breath during the "under God" bit in grade school who has long since learned to let bygones be bygones, the religious official motto is just too much. I guess history does repeat itself: it feels to me like we're at the beginning of another religious revival. Yuck.

|9.14.05 @ 5:48PM|#

I agree with the decision, but I can't believe that people care that much about it. I'm a non believer and suffered not one whit. I tend to agree with those who feel that the pledge in general is a bit creepy, and I just don't think the 'under God' portion makes it measurable more so.


"My favorite part of this imbroglio..."

I'm all out of Faith
This is How I Feel

|9.14.05 @ 6:14PM|#

Kevin:

I actually got into an on-line feud with syndicated host Mike Gallagher a few years ago because I said he was symbolic of the mediocrity that permeates political talk radio.

Then I heard Lars Larson and I realized I owed Mike Gallagher an apology...

|9.14.05 @ 6:29PM|#

Ed, was your teacher old enough to have grown up with (and thus preferred) the pre-God version?

...argued that God has no meaning. It's hard not to be at least a little amused.

Why am I reminded of Prince Charles's qualifying "whatever love means" when he announced his engagement to Di?

I've always hated being told what to do.

Probably true of most or all the people here, and thus our reason (heh) for convening.

|9.14.05 @ 6:46PM|#

Hmmm,

I think that "E Pluribus Unum" is better, or more representing than "In God We Trust". Mainly because the latter is manytimes not true.

But I think that getting worked up over "Under God" is silly. Like RC Dean mentioned, you have public school and everything that entails, as wrong as that is and you are getting worked up about two words spoken un public school.

To me that is like getting upset over the color of the gun that someone shoots your kids with.

|9.14.05 @ 6:49PM|#

The problem with this approach is that the fundies use this to get the public in a lather while they slip ID into science classes through the back door.

This statement was added to the pledge in a political manner and is not historical but I agree making a big deal of it just stokes those who will eventually turn these schools into anti-science pro-religion institutions.

|9.14.05 @ 6:51PM|#

Why can't the "under God" supporters argue that the establishment clause has a de minimis exception? Sitting near people who say the phrase "under God" each morning doesn't seem to be an injury worth the time of the court.

|9.14.05 @ 7:01PM|#

I really can't believe how dumb liberals are. They created the public school leviathan and now that the fundies are trying to take control of it (by inserting religion - like "teach the controversy" BS) they are expecting something to stop it. I'm sure Newdow is a liberal Democrat.

The polls show most Americans are religious, believe in creationism, etc. and this is where the public schools are heading. Once the Supreme court is full of majoritarians there is simply no defense left.

|9.14.05 @ 7:19PM|#

David: "I've never understood the pledge being to the flag first and the republic for which it stands second."

Francis Bellamy wrote the pledge as part of an advertising campaign for his flag business.

|9.14.05 @ 8:45PM|#

If this stands, I'll be pleased, but very, very surprised.

That's because you hate America, and its sovereign ruler Jesus Christ (plus whoever the Judeo half of Judeo-Christians worships).

|9.14.05 @ 8:47PM|#

Is the Pledge still the Pledge if you alter it? If I omit the parts I disagree with? For example, would the righties be upset if I replaced "God" with "Jesus"? What if I used "Zeus" instead? If I replaced "flag" with "Constitution"? Where lie the true hearts of people who display the Stars & Bars while pledging to the Stars & Stripes and supporting indivisibility? These and other interesting questions dog the Pledge as currently written.

Here's my first draft of a Pledge I'd be willing to take:

I pledge allegiance to the Constitution of the United States of America, dedicated to the proposition of liberty and justice for all.

Yeah, it lacks poetry. First draft, and all. But it puts the Constitution in its rightful place as the object we pledge allegiance to, rather than some tertiary flag. Now that I think about it, the Constitution is secondary, and the flag would be a fourth-order item (The republic that arises from the Constitution would be the tertiary item.) The actual primary idea, which the Constitution attempts to implement, is liberty.

OK, second draft:

I endorse the proposition that all men are created equal, that they possess inalienable rights, and that government is instituted to protect those rights. I pledge allegiance to the Constitution of the United States of America and the government it authorizes so long as they too endorse this proposition.

Still lacks poetry. But it's a helluva lot closer to what I believe. Now it's your turn to improve the Pledge.

|9.14.05 @ 8:57PM|#

that God has no meaning
So it's a parody inside a pledge wrapped in a flag.

God is an apatheist.

|9.14.05 @ 9:02PM|#

I'm old enough to remember how hard it was to remember exactly where to plug "under god" into the cursed thing.

Now, I equate reciting the Pledge with folks getting their guns confiscated. I mean, how can that happen?
All of us need to take this pledge:
"They'll have to pry the words to that 'other' pledge from my cold, dead lips."

|9.14.05 @ 9:12PM|#

"God is an apatheist."

How many ruptures will the Rapture cause? Does God know? Is he rubbing his hands in anticipation?

|9.14.05 @ 11:19PM|#

Why should the government be able to endorse any belief other than religious belief? The government endorses beef, drug-free living, safe-sex, and whatever else it wants. But it can't put up a Christmas tree!

Either the government ought to be able to endorse anything it wants, including religion, so long as there is no coercion to do or believe anything, or the government ought not be able to endorse any view.

This special category for religion is discriminatory; religious belief is no different than any other belief and the law ought to reflect that (including refusing special accomodations to religion).

|9.14.05 @ 11:29PM|#

"This special category for religion is discriminatory; religious belief is no different than any other belief and the law ought to reflect that (including refusing special accomodations to religion)."

Unfortunately, that's not the case. The Constitution and subsequent rulings hold religion to be deserving of special protection: it is uniquely a part of civil society, not government.

Of course, try explaining that to the pledge defenders. According to them, preventing the government from getting involved in the religious business is tantamount to banning religion. Because, of course, they aren't allowed to pray or say the pledge unless the Government leads them in doing so.

|9.14.05 @ 11:33PM|#

Look, Jon Stewart explained the whole thing quite clearly tonight:

1) The phrase "under God" was added for a very good reason: When it was added we were at war with godless Communists, so it was important to emphasize our religious faith. And now we're at war with religious fanatics, so it's....um, wait....well, never mind.

2) All things considered, the phrase "under God" is hardly worth getting upset about. I mean, if you want to trivialize a phrase, just have some middle school students recite it every day first thing in the morning.

|9.15.05 @ 1:38AM|#

I don't know why people are painting this as a right-wing issue. The last time this issue came up, opposition to removing the "under God" from the Pledge polled at just under 90%. Right-wingers are the ones doing the talking, but (unfortunately) almost every non-atheist in America agrees with what those right-wingers are saying.

|9.15.05 @ 7:54AM|#

I have a solution that would meet the satisfaction of all parties involved.

We should scrap the pledge altogether, and replace it with lyrics from Stryper:

Jesus, King, King of Kings
Jesus, makes me wanna sing

He makes me want to jump around
He keeps my feet above the ground
Tonight the night it's best to rock the land
We're gonna rock for something new
We're gonna rock for something true
Tonight's the night so let's lift up our hands

Jesus, King, King of Kings
Jesus, makes me wanna sing

|9.15.05 @ 8:39AM|#

Congress shall make no law ...

Seems like states can. The 1st Amendment was a limit on federal power.

I know, I know, don't tell me about the "incorporation" stuff they made up to apply it to the states; that's as well reasoned as Roe v. Wade, ie. not.

|9.15.05 @ 8:49AM|#

A large majority of Americans were opposed to interacial marriage when the SC issued the Loving decision striking down bans on it.

A majority of Americans say evolution is wrong and want creationism or ID taught in science classes? Is that what we should do then?

|9.15.05 @ 10:57AM|#

I agree with Mr Nice Guy--let's scrap the pledge altogether and allow each child to replace it with poetry/lyrics of their own choice or design. Why adults are so in love with this creepy tradition I have no idea--we all hated it as kids. For me the creepy part was not the 'under God' bit, but the mere fact that I was forced to attest to my allegiance to anything at all. Is it not my right as an American, no matter what my age, not to feel allegiance to something if I choose? Why is it a governmental institution's business to compel my statement of conformity? And if the pledge is not compulsory, then what's the point? (Well, Timmy, it's time to state your allegiance to this country, if you want.") The 'under God' bit for me wasn't so bad as it signaled the end of the awkward and absurd exercise. Having said that, though, I really never understood what was meant by 'under God.' It was just a phrase I uttered and I couldn't really picture clearly what was meant. All I could come up with was that the line was saying that God was physically above us--but I didn't see why such a fact was worth mentioning. I sort of expected to look up at that point in the pledge and see not the spongy-tile ceiling but a big white hairy man--"Boo!"

The pledge is unAmerican. There, I said it. And a silly waste of time. There, I said that, too. "Under God" should go and take the rest of the pledge with it.

A solution often proposed is to have a moment of silence, in which kids can mutter the pledge to themselves if they so choose. Of course, no one except that freak kid in the front row wearing that "Kill a Commie for Mommie" T-shirt is gonna do that, so the moment of silence is just a waste of time as well--even if there is value in having the kids stand there and think "this is so boring" why should such a practice be compulsory as opposed to a choice of the teacher's? The question seldom asked is, Why is it the school's job at all to be involved in these sorts of issues?

Garth|9.15.05 @ 11:30AM|#

Having suffered both the Pledge and the dreaded "moment of silence" (the Trojan horse of the devout) I have to second (nineteenth?) the notion that this is a Pyrric victory.

During the moment of silence a friend of mine and I would pull of various silent stunts. One was to look like we were experiencing rapture � hands up, faces beaming � another was to bow to Mecca. We would get scolded for being disruptive to which we would retort that 1) we were being silent and 2) since this was, in reality, a mandated moment of prayer we would do so as we pleased.

BTW this only started after we were stopped from either reading or doing homework, or anything else that was silent. If we weren�t going to bow our heads (in prayer, of course, though unsaid) then we should just sit with our books closed.

|9.15.05 @ 1:52PM|#

"Free people pledge allegiance to nothing. Freedom defies allegiances, let alone necessitates their pledges. One is not free in devotion to governments, one is free in defiance of governments. Free people don�t worship an ideal; they live it."

http://caveshadows.typepad.com/cave_shadows/2005/09/none_dare_call_.html

|9.15.05 @ 2:04PM|#

I hold that:

1) If kids in public school are made to say the Pledge of Allegiance, then "under God" shouldn't be in there.

2) But I also agree that deleting the words will spark a reaction that could be more damaging than just leaving the words in, given that:

3) Saying the ledge of allegiance at the beginning of school is a pretty empty ritual. Standing up for the National Anthem at a ballgame is more meaningful.

We said the pledge of allegiance in kindergarten. (I don't think we did after I started Catholic grade school.) The only lasting effect it had on me, I think, was the sense of recognition years later when I was reading a science fiction book, and one character began reciting the pledge of allegiance to the United Republic of Great Britain:

"I pledge allegiance to the flag, and the Republic for which it stands. Three nations, individual --"

(That's as far as the character got before he was cut off, because saying the pledge of allegiance of the former Republic was considered high treason under the Restored Monarchy.)

|9.15.05 @ 4:34PM|#

The first amendment prohibits Congress from making laws "..abridging the freedom of speech". This has traditionally been interpreted as allowing to say anything we want. It should also be interpreted as protecting citizens from being forced to say something. No person or entity should be able to force anyone to recite the pledge of allegiance. Newdow should have fought for the constitutional right not to have to recite the pledge at all (instead of two particular words in it). This would have given the judges firm grounds to prohibit forced recitals without inciting the backlash of all the religious nuts in this country.

Newdow simply picked the wrong phrase in the First Amendment to wield as his weapon.

|9.16.05 @ 11:34AM|#

Just an FYI to Crushinator, but the Texas pledge does not mention God. In fact, it's simply a pledge to the flag, not the state. It's done in honor of Texas' brief existence as an independent nation. Pointless? Probably. Some kind of loyalty blood oath to defend the state against its enemies? Hardly.

"Honor the Texas flag; I pledge allegiance to thee, Texas, one and indivisible."