Recitation of Pledge Found Unconstitutional... Again

[Emsworth]

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.

[Emsworth]

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.

[Emsworth]

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.

[Emsworth]

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.

[Emsworth]

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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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.

[Emsworth]

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.

[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.

[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).

[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.

[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.

[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.