Finally, the SJC takes up this case. The outcome would be interesting. Won't you say? I'm in favor of the removal of "one Nation, under God" from the pledge. I think it's unnecessary.
It is unnecessary, but it doesn't bother me. It should be removed because of the separation of church and state, not because people don't like it.
Re: Re: "One Nation, under God." I knew a guy from Tennessee who might disagree. He still refers to the Civil War as the "War of Northern Agression".
"SJC"? I'm not sure what that stands for, but anyway, the Supreme Court agreed to hear the case. There are several ways this could turn out: 1. The case is dismissed because the father lacks standing to bring the suit. 2. Under God is determined to violate the "Lemmon Test" standards and is stricken from the pledge. 3. A majority of justices refine the Lemmon Test to allow for some basic reference to a generic God in certain contexts without it equalling an "establishment" of religion. 4. A plurarily of justices issue a multitude of different opinions that hopelessly clouds the Establishment Clause analysis, making the case meaningless. Lastly, despite the interesting legal issues associated with the pledge, I'd think the Democratic Party is none too happy to have this case before the Court. The last thing they want is to go into an election year giving conservatives the opportunity to say that Democrats are against God.
The Lemon test (from Lemon v. Kurtzman) says that in order legislation/regulation to be upheld against an Establishment Clause challenge it must: 1. Have a secular purpose (in other words, just because a law impacts religion, doesn't mean that it's automatically unconstitutional -- it could have other, valid purposes). 2. Not have the primary effect of advancing or inhibiting religion (incidental effects on religion are OK). 3. Not foster excessive entanglement with religion Frankly, I think the Court might try to Ashwander this case and avoid the constitutional result by resolving it on the standing issue. As for rewriting the Lemon test, I'm not so sure that will happen. There was a lot of talk that the Court was looking to do this -- but that was mostly in the early to mid 90s after cases like Lee v. Weisman and other large numbers school prayer cases were coming through the court system. I don't think they'll use this case to do it. Frankly, I see pledge being upheld as is because of its historical, not religious significance. There, are, however, likely to be a number of dissents. I could see the conservative bloc of the court writing just one majority opinion and trying to avoid fracturing if at all possible.
See prior thread (https://www.bigsoccer.com/forum/showthread.php?threadid=68585&perpage=40&pagenumber=2) for discussion on Lemon-Kutzman test, and further modifications in Lynch v. Donnelly and Allegheny v. ACLU.
But for a lot of people, it's precisely the historical significance that is offensive, even beyond the religious issue. The addition of those two words, less than 50 years ago, was indicative of the scary political environment at that time, and eerily similar to the scary political environment of the present time.
Three part test relating to Establishment Clause analysis, decided in Lemmon v. Kurtzman. 1. Does the law have a secular purpose? 2. Does its primary effect advance religion? 3. Does it involve an excessive entanglement with religion? Money to schools cases lose on the third prong. In ordinary circumstances, the "Newer, Fresher, Lemmon Scented Pledge" would lose because of the absence of a secular purpose in the words "Under God." (Side note: In another thread Norsk Troll inadvertently helped the Pro-pledge argument by saying the words were added to distinguish the U.S. from a communist nation-- i.e., a secular purpose). Scalia, Rehnquist, Thomas, and to a lesser degree O'Connor have all had trouble with the Lemon Test and want to amend or gut it in some way. O'Connor (not surprisingly) has a middle ground approach that focuses on whether a particular religious expression gives the appearance of endorsement of a particular religion. This is how she lets nativity scenes co-exist with the Star of David in public squares during the holiday season. My prediction is O'Connor will muster a majority with Kennedy and maybe even Breyer or Souter that refines the test to allow for generic non-sectarian endorsements of religion in certain contexts, and that she'll give some rationale for what those contexts might be. Stevens and Ginsberg dissent. Worst case is she can't come up with a test and Breyer and Souter defect making it a 4-4 decision and a political issue. See also, gildarkevin's analysis, posted while I was writing this and with which I also agree
John...since the Pledge was written in the 19th c. withOUT the "under God" phrase, and since that phrase was added in the '50s with the explicit purpose of differentiating us from the godless commies, how in hell could the Supremes justify this? If the original pledge had the phrase in it, ok. That would be pretty easy to justify. But given the facts of the case...wouldn't the justices be ignoring facts and established case law, and substituting their political agenda, to rule this way? BTW, if past experience is any guide, I'd like to lay $20 down on option 4.
That's what the Ninth Circuit thinks. Your question quoted my Option #3, which was rewriting the test for what is an Establishment Clause violation. Of course, creating a new test involves some change to established case law. Try this. Pretend (this is an extreme example) the Court says the new test is "Did the Gov't intend to endorse a particular religious group or organization?" The current pledge would clearly pass that test.
My father, a long time educator (English teacher), demonstrated to me one of the main problems with the pledge a few months ago. I pledge allegiance (pause) to the flag (pause) of the United States of America, (pause) and to the Republic (pause) for which it stands (pause) one nation, (pause) under G--, (pause) indivisible (pause) with liberty (pause) and justice for all. What with all the f***ing pauses. We have never moved past a kindergarten level of annuciating the pledge. We learned in chunks as children, because it was hard to remember, but we never got rid of all the damn pauses. Try reading it without pauses, it really makes a difference. I pledge allegiance to the flag of the United States of America, (short pause) and to the Republic for which it stands, one nation indivisible, with liberty and justice for all. Quango
I don't really want to debate the merits of the case on these boards, but let's just say that I understand that argument -- I just think that provides the Court with the "out" it's looking for in order to rule in favor of the pledge (a result I don't necessarily agree with).
I still don't think it is helping, JG - but merely recognizing that the first hurdle is the easist to overcome. Merely stating some secular purpose can get you through, even if everyone and their mother knows what you're really trying to do is slip in some old-time religion. Therefore, let's not waste time arguing that, and let's focus instead on the real battlefield - the second test.
I would not concede the first point if I were you, as that's the point on which the Ninth Circuit torpedoed the Pledge, but if you want to move on, there's a strong argument that the words neither advance nor inhibit religion. "Under God" is far less promoting of religion than a nativity scene in a public square. If a nativity scene is OK when accompanied by religious symbols of other beliefs (Star of David), then surely a non-descript, non-sectarian recognition of a generic deity has nothing more than an incidental effect on religion. The excessive entanglement issue is not raised by the pledge. I really think you better stick to the first argument.
Alright, JG - it looks like we're going to go at it again! (Actually, if you review the prior thread, near the end you will see my summary of prior posts, which evidenced that it was Manny who actually made the argument about the secular purpose, not me - a determination with which you actually agreed). And as I stated before, I continue to believe it would fail step 2 as well, especially given the more recent modifications, starting with O'Connor's "endorsement" language from Lynch v. Donnelly (whether there is a "government endorsement or disapproval of religion" that "sends a message to non-adherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community."). Five justices applied that modification later in Allegheny v. ACLU. Even Kennedy's dissent in Allegheny, which held that the test should be whether government "coerced" an individual into supporting or participating in religion, would probably be enough to shoot it down, with Kennedy acknowledging that coercion would include "symbolic recognition or accomodation of religious faith." I think adding "under God" to the pledge would certainly qualify as endorsement, and even as symbolic recognition under Kennedy's proposal. (Note: portions of the foregoing rebuttal constitute a rebroadcast of opinions previously expressed by the author elsewhere on this forum, but are hereby ratified in their entirety as set forth above.
Re: Re: Re: Re: "One Nation, under God." Either way i don't really care. There are arguments both for keeping and deleting the phrase. Whatever the court says is fine by me.
Lynch v. Donnelly approved of a Nativity scene in a public square. Allegheny v. ACLU approved a Menorah put together with other religious symbols. If a Nativity scene in proper context does not endorse a particular religion, and government sponsorship of a variety of religious symbols is not a problem, then where is the harmful effect of a non-sectarian, recitation acknowledging the existence of religion generally in a pledge that no child can be compelled to recite? I think the plaintiff has no chance of winning if the Court disregards the secular purpose argument.
And by the way, JohnGalt, don't get me wrong - I wouldn't seriously foregoing arguing the first test either. I just think taken as a whole, 1 and 2 are being melded by O'Connor into a single concept, as we saw in Sante Fe Ind. School Dist. v. Doe (2000), where the challenge was against a statute permitting, but not requiring, student-led prayer at football games. The Court cited O'Connor's concurrence in Lynch, and held "the mere passage by the District of a policy that has the purpose and perception of government establishment of religion" violates the Establishment Clause, and The Court repeated that phrase "purpose and perception" later, which I take as an indication they are melding the tests somewhat. Of course, the Court still used Lemon anyway, and found no secular purpose. And the 9th Circuit's opinion on the Newdow decision recognized that the Court used O'Connor's "endorsement" test in Allegheny, and recognized that O'Connor's endorsement test "effectively collapsed the first two prongs of the Lemon test". I really think that's where the Court is headed. The 9th Cir. also analysed the case on all three tests (Lemon, "endorsement", and "coercion"), and found that "under God" failed all 3. I hope the Supreme Court can do the same.
Come on, John - we're talking about the tests here, not the application. The application is always fact-specific. You don't think the court can distinguish between holiday displays on public property and religious speech in school? Lynch only approved the display because it also included Santa Claus, Christmas trees, "Seasons Greetings" banners and other non-religious stuff, that as a whole didn't endorse religion. Allegheny was the same thing, with creches, trees, and a menorah. The 9th Circuit's decision in Newdow is a great roadmap for how the Court should hold.