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Author Topic: Recitation of Pledge Found Unconstitutional... Again  (Read 10659 times)
Emsworth
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« on: September 15, 2005, 05:30:46 pm »
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CNN Article

A District Court judge in California has ruled that, while the pledge of allegiance does not violate the establishment clause, the recitation of the pledge in public schools is indeed unconstitutional. He argues that the school, though not technically, effectively coerces students.

Certainly, you may argue that people are not "forced" to say the pledge. However, there is undoubtedly some de facto coercion. It is only the recitation of the pledge and the associated coercion, not the pledge itself, that is deemed unconstitutional; accordingly, I think that the opinion is quite likely to be upheld by the Supreme Court. Anthony Kennedy will probably vote with the liberals on this issue. This time, the Supreme Court won't be able to duck the issue by citing the issue of standing.

Bush's nominations will have no effect; Rehnquist obviously would have voted to uphold the pledge, and O'Connor would have done so as well.
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A18
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« Reply #1 on: September 15, 2005, 05:33:56 pm »
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De facto of what kind?

EDIT: De facto coercion of what kind?
« Last Edit: September 15, 2005, 05:38:09 pm by A18 »Logged
Emsworth
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« Reply #2 on: September 15, 2005, 05:43:14 pm »
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De facto of what kind?
When the school sets aside time for the recitation of the pledge, there appears to be an unstated expectation that each student will participate. It is hardly likely that a first grader would desist from saying the pledge, when all of his compatriots are participating, and the teacher leads the activity. He hardly thinks, "Well, the Supreme Court has ruled that I don't have to say the pledge, so I won't do so." He thinks, "The teacher is leading us in the pledge, so I will repeat after her."

This decision is nothing more than an extension of West Virgina v. Barnette. The Supreme Court has held that a state may not compel a student to recite the pledge, and this was before the words "under God" were inserted. Now, although there is no de jure coercion by the state, there certainly is de facto coercion. We need not even worry about the establishment clause and its implications on the phrase "under God"; this is merely an extension of well-established and correct precedent.
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A18
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« Reply #3 on: September 15, 2005, 05:48:27 pm »
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So your argument is that we have to dump the pledge entirely?
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J. J.
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« Reply #4 on: September 15, 2005, 05:50:55 pm »
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The remedy is for the individual not to say it.  Suppose that I live in a city where 95% of the eligible citizens vote; is that coercion for me to vote, if I chose not to?
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J. J.

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Emsworth
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« Reply #5 on: September 15, 2005, 05:53:51 pm »
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So your argument is that we have to dump the pledge entirely?
No, just that public schools cannot have a daily recitation of the pledge. (The pledge should be dumped anyway, but not on these grounds.)

The remedy is for the individual not to say it.  Suppose that I live in a city where 95% of the eligible citizens vote; is that coercion for me to vote, if I chose not to?
Anthony Kennedy has argued that the "coercion" of a child in a public school may not be the same as the "coercion" of an adult.
« Last Edit: September 15, 2005, 05:55:54 pm by Emsworth »Logged
MODU
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« Reply #6 on: September 15, 2005, 05:57:46 pm »
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Time to burn our historical documents to ensure there are no references to any type of religion. 

Fortunately, this another crack-pot California ruling and will be overturned (yet again).
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Emsworth
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« Reply #7 on: September 15, 2005, 05:59:36 pm »
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Time to burn our historical documents to ensure there are no references to any type of religion.
That is not an accurate description of the effect of this ruling. The judge explicitly indicated that "under God" was constitutional.
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TheresNoMoney
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« Reply #8 on: September 15, 2005, 06:00:24 pm »
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This will be overturned in a higher court.
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« Reply #9 on: September 15, 2005, 06:02:43 pm »
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The pledge is fine, it won't be changed and that's one of the reasons why I'm glad Atlasia isn't America!
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« Reply #10 on: September 15, 2005, 06:05:57 pm »
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Time to burn our historical documents to ensure there are no references to any type of religion.
That is not an accurate description of the effect of this ruling. The judge explicitly indicated that "under God" was constitutional.

I was just trying to sound as absurb as the ruling.  Sorry for not clarifying. 
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J. J.
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« Reply #11 on: September 15, 2005, 06:35:23 pm »
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The remedy is for the individual not to say it.  Suppose that I live in a city where 95% of the eligible citizens vote; is that coercion for me to vote, if I chose not to?
Anthony Kennedy has argued that the "coercion" of a child in a public school may not be the same as the "coercion" of an adult.

Bad argument.  If it will intimidate one, it will intimidate all.
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A18
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« Reply #12 on: September 15, 2005, 06:40:27 pm »
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Nonsense. Obviously some people are more timid than others, and there is a casual relationship between that and age.

I do agree that the pledge is constitutional though.
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Emsworth
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« Reply #13 on: September 15, 2005, 06:45:04 pm »
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Bad argument.  If it will intimidate one, it will intimidate all.
Well, I feel that your analogy is an inappropriate one in the first place. Voting is a constitutional right. The argument of "coercion" does not even enter into play here; even if there is "de facto coercion" (which, I would argue, there is not), it does not matter.

On the other hand, having official time set aside for pledge recitation is not a constitutional right. Sure, students may say the pledge on their own, and have a fundamental right to do so under the free speech clause; however, at the same time, they do not have a fundamental right to the school setting aside pledge recitation time. Furthermore, it is not just the recitation of the pledge by the other students that results in the coercion. There is also the fact that the school is officially sponsoring the recitation, and the fact that a teacher is leading it. The totality of circumstances would result in the de facto coercion of students. The Supreme Court has accepted the same argument with respect to official prayers in schools, even though those prayers may be voluntary.

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I do agree that the pledge is constitutional though.
Incidentally, what enumerated power would you consider the pledge as falling under? I've justified congressional sanctioning of the flag (for example) as being authorized by the powers of regulating foreign commerce, of determining the law of nations, and of generally conducting foreign affairs, all in conjunction with the elastic clause. At the same time, I haven't been able to think of an enumerated power that would permit the establishment of the pledge, although I'm sure there must be one somewhere.
« Last Edit: September 15, 2005, 06:48:20 pm by Emsworth »Logged
Giant Saguaro
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« Reply #14 on: September 15, 2005, 06:49:14 pm »
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Not surprising another thing like that comes out of Cali. And I'm not surprised that Michael Newdow has decided to keep this going. I readily expected both.

When I was an instructor I observed several student teachers and I happened to observe several instances where one student chose to decline to stand and recite the pledge. Only one in the room, and I saw it several times with several different people. Maybe 3 times. Not only did no one intimidate or coerce any of these single, non-pledging students, no one even paid any attention. They didn't care! I mean this argument that an optional pledge is coercion or intimidation is baloney. If we're going to stop everyone from saying it because one person does not want to say it, who are we infringing upon here?

I sure hope this is overturned and I hope this issue is settled. I don't see anything wrong with the pledge and I believe it to be constitutional and I see nothing wrong with "under God."
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A18
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« Reply #15 on: September 15, 2005, 06:51:20 pm »
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Well, it's not legally binding. No enumerated power is necessary just to pass something ceremonial.

Of course, if a state doesn't want to use the pledge, its people should have that right in our federalist system.
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Defarge
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« Reply #16 on: September 15, 2005, 06:52:57 pm »
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Here we go again.

Why not keep silent?  Half of my english class doesen't say it in the mornings, heck my English teacher doesen't say it in the morning.
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Jake
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« Reply #17 on: September 15, 2005, 06:59:25 pm »
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Same thing in my school Defarge, except those I observe not saying I simply view as human trash. This ruling is one of the reasons we have courts outside California and will be overturned by the Supreme Court once the fools on the 9th Circuit has ruled concurrently.
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Emsworth
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« Reply #18 on: September 15, 2005, 07:11:27 pm »
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Well, I will admit that the argument of "de facto coercion" is not necessarily the most compelling one (the establishment clause argument has always seemed better to me), although I don't see anything particularly unsound with the underlying logic: if de jure coercion was prohibited by Barnette, then it stands to reason that de facto coercion is also prohibited. The situation is perhaps analagous to Plessy: "separate but equal" may be equal de jure, but not equal de facto. Similarly, there may be no coercion by law, but there may be coercion in fact.

Thus, the only question is as to whether there is indeed de facto coercion, and that is of course a debatable point.
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« Reply #19 on: September 15, 2005, 08:27:19 pm »
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Good. I don't really care about "Under God", I just don't want kids saying the damn thing. Forced nationalistic oaths belong in North Korea.
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« Reply #20 on: September 15, 2005, 08:30:46 pm »
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When I was an instructor I observed several student teachers and I happened to observe several instances where one student chose to decline to stand and recite the pledge. Only one in the room, and I saw it several times with several different people. Maybe 3 times. Not only did no one intimidate or coerce any of these single, non-pledging students, no one even paid any attention. They didn't care! I mean this argument that an optional pledge is coercion or intimidation is baloney. If we're going to stop everyone from saying it because one person does not want to say it, who are we infringing upon here?


When my friend declined to stand last year, a group of kids across the room yelled at him, and the teacher didn't seem to care. It all depends on the type of kids, I suppose.
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« Reply #21 on: September 15, 2005, 08:33:39 pm »
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Anyway people who oppose the ruling:

Would you be opposed to requiring teachers to inform students that they do not have to say the thing, something that many students are not aware of?

Only way I'd tolerate it is if the school says that it's voluntary.
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Jake
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« Reply #22 on: September 15, 2005, 08:34:23 pm »
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My school requires us to stand whether we recite it or not, though you could conceivably decline to do so, though my homeroom teacher would most likely ostracize you and apply other rules to you if you are late to homeroom or forget to bring in a form. Most of those who decline to say the pledge simply do it to be rebels against authority, not because they can make a coherent argument against it like Emsworth and others can.
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J. J.
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« Reply #23 on: September 15, 2005, 08:39:54 pm »
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Well, I will admit that the argument of "de facto coercion" is not necessarily the most compelling one (the establishment clause argument has always seemed better to me), although I don't see anything particularly unsound with the underlying logic: if de jure coercion was prohibited by Barnette, then it stands to reason that de facto coercion is also prohibited. The situation is perhaps analagous to Plessy: "separate but equal" may be equal de jure, but not equal de facto. Similarly, there may be no coercion by law, but there may be coercion in fact.

Thus, the only question is as to whether there is indeed de facto coercion, and that is of course a debatable point.

I live in a neighborhood where I might be de facto coerced from living.  Certainly my choice has raised the eyebrows of some posters.  Is that "de facto coercion?"  In every class I attended in elementary school, I attended with a girl that was a Jehovah's Witness; she, as was her right, did not say the Pledge of Allegiance.  That might have helped teach me tolerance.  Permit those who wish to  say it, and those people who don't wish to not say it.
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J. J.

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« Reply #24 on: September 15, 2005, 08:41:32 pm »
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Well, I will admit that the argument of "de facto coercion" is not necessarily the most compelling one (the establishment clause argument has always seemed better to me), although I don't see anything particularly unsound with the underlying logic: if de jure coercion was prohibited by Barnette, then it stands to reason that de facto coercion is also prohibited. The situation is perhaps analagous to Plessy: "separate but equal" may be equal de jure, but not equal de facto. Similarly, there may be no coercion by law, but there may be coercion in fact.

Thus, the only question is as to whether there is indeed de facto coercion, and that is of course a debatable point.

Up till now, I have been very favorably impressed by your understanding of the constitution.

The establishment clause was explicity created to prevent an ESTABLISHED chuch (the Church of England is an ESTABLISHED church, as at the time the Roman Catholic Church was the ESTABLISHED church in many countries, the Eastern Orthodox Church in yet others).

There is a difference between nondenominational references (such as 'under god' and making a specific denomination the official church).

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