Recitation of Pledge Found Unconstitutional... Again

[I spent the winter writing songs about getting better]

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.

How many say it because they aren't aware they don't have to?

Like I said, would you oppose mandating that teachers inform the  class that it is optional?

I'm just thankful they never even had that thing in class since 6th grade at the schools I went tol.

[MODU]

I can just imagine how people today would react when not only "under God" is said in the pledge, but also prayer followed right after the pledge . . . like it was back when I was in school.  Of course, none of my peers felt like they were being forced into believing something that they didn't.  They were proud to say the pledge, and remained silent during the time allotted for prayer.

[phk]

I actually omitted the words 'under God'.

[J. J.]

How many say it because they aren't aware they don't have to?

Like I said, would you oppose mandating that teachers inform the  class that it is optional?

I'm just thankful they never even had that thing in class since 6th grade at the schools I went tol.

I have absolutely no problem with a teacher, or anyone else, saying, "This is voluntary; you do not have to say it."

My high school had a moment of silence, I remember by home room teacher saying, "If you go to church, you can think about church."  Nobody compelled me to think about church; I usually didn't think about church.

[Brandon H]

This thing will be appealed and the appeal has probably also been filed.

I do think though that school children should be taught why they are saying the pledge and what it means, not just saying it because they are told to. I'm sure most first graders don't know what allegiance, republic, and indivisible mean.

The key difference between this and Atlasia though is this was an unelected judge while in Atlasia an elected body overturned the Pledge.

[A18]

With respect, the fact that the judge is unelected is irrelevant. The Bill of Rights is there to protect against majority rule.

[??????????]

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).

Agreed this is what the founders meant.

[opebo]

Only a fascist would recite that disgusting pledge.  Little Eichmans.

[Jim24]

I applaud this ruling. The phrase "under God" has no business in the pledge and should be removed. Government endorsement of religion/monotheism is simply unacceptable regardless of what the ignorant Fox News-watching masses might think.

[Emsworth]

I live in a neighborhood where I might be de facto coerced from living.

The government is not involved here, so this analogy is not necessarily relevant.

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).

I respectfully disagree. Congress considered the following versions of the establishment clause:

...Nor shall any national religion be established.

Congress shall make no law establishing one religious sect or society in preference to others.

Congress shall not make any law infringing the rights of conscience, or establishing any religious sect or society.

Congress shall make no law establishing any particular denomination of religion in preference to another.

However, Congress rejected all of these versions. Why? Because they were all considered too narrow. The debates of the Conference Committee indicated that Congress (or at least the House of Representatives) "would not be satisfied with merely a ban on preference of one sect or religion over others."

Instead, Congress passed, and the states ratified, Congress shall make no law respecting the establishment of religion. The word "respecting" is key here; not only the establishment of specific religions, but also any law respecting the establishment of religion would be unconstitutional. If we say that the establishment clause only prevents an established Church, and nothing else, then we give no effect whatsoever to the word "respecting." We give no effect whatsoever to the congressional rejection of several narrow and limited versions, and its adoption of a much more broad version.

Therefore, I cannot agree with the assertion that the First Amendment's establishment clause prohibits only established churches, and nothing else whatsoever. The legislative and judicial history clearly indicate otherwise; even an original intent argument cannot prove the contrary.

The key difference between this and Atlasia though is this was an unelected judge while in Atlasia an elected body overturned the Pledge.

Why should it matter that judges are unelected? It is better that they are unelected, so that they will rule on the basis of the Constitution, not on the basis of the will of the majority. This is a country governed by the rule of law, not by the rule of the mob.

[MODU]

I applaud this ruling. The phrase "under God" has no business in the pledge and should be removed. Government endorsement of religion/monotheism is simply unacceptable regardless of what the ignorant Fox News-watching masses might think.

So, shall we burn all the documents in the National Archives where the founding fathers mention God/Creator?

[Emsworth]

I applaud this ruling. The phrase "under God" has no business in the pledge and should be removed. Government endorsement of religion/monotheism is simply unacceptable regardless of what the ignorant Fox News-watching masses might think.

So, shall we burn all the documents in the National Archives where the founding fathers mention God/Creator?

You are twisting what he is saying. The personal views of the founders do not constitute an "endorsement of religion" (to use his words).

[A18]

The poster is obviously ignorant of the history of constitutional law, and merely applauds this activist ruling because he likes the result.

I went through the original understanding of the establishment clause in an earlier post:

The First United States Congress began its legislative sessions with a prayer. The same week that Congress submitted the Establishment Clause as part of the Bill of Rights to the states for ratification, it enacted legislation providing for paid chaplains in the House and Senate.

The day after the First Amendment was proposed, Congress requested the president to proclaim "a day of public thanksgiving and prayer, to be observed, by acknowledging, with grateful hearts, the many and signal favors of Almighty God."

President Washington then offered the first Thanksgiving Proclamation, devoting November 26, 1789 on behalf of the American people "to the service of that great and glorious Being who is the beneficent author of all the good that is, that was, or that will be."

The Supreme Court under John Marshall opened its sessions with the prayer, "God save the United States and this Honorable Court."

[MODU]

I applaud this ruling. The phrase "under God" has no business in the pledge and should be removed. Government endorsement of religion/monotheism is simply unacceptable regardless of what the ignorant Fox News-watching masses might think.

So, shall we burn all the documents in the National Archives where the founding fathers mention God/Creator?

You are twisting what he is saying. The personal views of the founders do not constitute an "endorsement of religion" (to use his words).

Yet it happens every day.  There is a difference between "endorsing religion" and "establishing a national religion."   The second one is unconstitutional.  The first one is not.  And, who is to say what religion is being endorsed?  "God" is a religious netural term, except for religions that worship the earth or multiple gods. 

[Emsworth]

Yet it happens every day.  There is a difference between "endorsing religion" and "establishing a national religion."   The second one is unconstitutional.  The first one is not.

"Respecting the establishment of religion" is different from "establishing religion." The former is in the Constitution, not the latter.

[J. J.]

I live in a neighborhood where I might be de facto coerced from living.

The government is not involved here, so this analogy is not necessarily relevant.

Oh, I've been pulled over, three blocks from house by cops that that were surprised that I wasn't "coming into" the neighborhood.  When, appearing in court, I gave my address as "North _____ Street," and the judge looked at me an said said, "You mean South ______ Street, don't you?"

[MODU]

Yet it happens every day.  There is a difference between "endorsing religion" and "establishing a national religion."   The second one is unconstitutional.  The first one is not.

"Respecting the establishment of religion" is different from "establishing religion." The former is in the Constitution, not the latter.

So, it's not an issue, since no religion is being established.

[Emsworth]

Yet it happens every day.  There is a difference between "endorsing religion" and "establishing a national religion."   The second one is unconstitutional.  The first one is not.

"Respecting the establishment of religion" is different from "establishing religion." The former is in the Constitution, not the latter.

So, it's not an issue, since no religion is being established.

I never said that a religion was being established. However, I repeat: "respecting the establishment of religion" is more broad that "establishing religion." Even if "no religion is being established," the constitutional provision can be violated, as long as there is a law "respecting the establishment of religion," including a law which endorses one particular type of religion over another.

[MODU]

I have to disagree. 

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...

In this case, respecting means regarding.  Congress cannot pass laws that would establish, or to go as broadly as endorsing, a national religion.  This was one of the reasons why many came to the Colonies to begin with, since the Church of England gained too much power and was intollerant of others. 

Additionally, it cannot pass laws that would infringe upon the freedom of religion either.  Since stating "Under God" is not specific to one religion, and therefore does not violate the First Amendment.  If people have a problem saying those two words, they can easily take a breath and continue on with the rest of the pledge with everyone else.  God is a religion-neutral term.  While Christianity primarily uses this term in the Bible, the Jews, Islamists, and some Indian religions in the US also use the term.  Now, if we said "under Allah" or "under Yahweh" or even "under Jehovah," then that would be a violation of the First Amendment since it singles out a particular religion.

[Emsworth]

In this case, respecting means regarding.  Congress cannot pass laws that would establish, or to go as broadly as endorsing, a national religion.

Exactly: even an endorsement is forbidden. The establishment clause does not refer to "a national religion" or to "a religion," but rather to "religion" alone. Hence, it is religion in general, not just one specific sect or denomination, that cannot be established or endorsed. Whether one religion is singled out or not is irrelevant.

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With all due respect, that is irrelevant. 

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No, it is not. Buddhists do not believe in God, for example. Neither do some Native Americans. To say that "God" is religion-neutral is actually quite exceptional. I can think of no word with more relationship to religion than "God."

Justice Hugo Black, incidentally, seems to give a nice summary of the establishment clause:

The 'establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever from they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa.