

'Under God' Held Constitutional in 9th Circuit Pledge Ruling - grellas
http://www.law.com/jsp/article.jsp?id=1202446113657&src=EMC-Email&et=editorial&bu=Law.com&pt=LAWCOM%20Newswire&cn=NW_20100312&kw=Reinhardt%20Stands%20Alone%20on%209th%20Circuits%20Pledge%20of%20Allegiance%20Under%20God%20Ruling

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grellas
I had posted this article not so much to highlight the faith/atheism issue as
to highlight the way judging often works in reality.

This case had caused a huge uproar in 2002 when Judge Reinhardt had led a
panel in striking down the Pledge as unconstitutional. While no politician
would defend the decision, the case went up on appeal to the U.S. Supreme
Court, which punted on it by holding that the plaintiff, a gadfly lawyer named
Newton Minnow, lacked "standing" to bring it - this meant the Court
invalidated the decision while avoiding the jurisprudential pit into which it
might lead under the Establishment Clause line of cases.

The striking thing that happened here is Mr. Minnow found a qualified
plaintiff to renew his attack and saw it head to a friendly panel of the Ninth
Circuit that seemed highly likely to invalidate the 'under God' language, with
Judge Reinhardt and another leading liberal judge - one who had a track record
of striking down laws promoting religion in such contexts and who was a
30-year friend of Judge Reinhardt's - constituting two of the three panelists.

Yet the decision did _not_ go as expected, and it appears that this resulted
as much as anything from a pragmatic decision by the second liberal judge on
the panel not to want to go against the political headwinds that the case
inevitably presented.

I had clerked for a federal court and often saw this sort of thing. Judging
may appear "objective" or "disinterested" but, in reality, where a case is
politically charged, the politics often affects the outcome - and that appears
to be what happened here. Actually, this is somewhat surprising from the Ninth
Circuit appeals court, which has a long history of following its own path on
such issues (and hence has a historically high reversal rate in the Supreme
Court).

Hope this isn't too much "inside baseball" stuff. I think it depicts an
interesting reality within our courts that many do not appreciate in taking a
mere headline view of such decisions. This piece does a fine job of bringing
out the human issues that can so affect the judging process.

~~~
euroclydon
Thanks for the explanation. I find constitutional law very interesting,
because it seems to be easy for me to comprehend, because the constitution's
articles are so short, and the arguments rational rather than technical, like
you would find in say, tax law or something like that.

Tell me if my impression is accurate. It seems to me that liberal justices, at
least the ones I've heard on the Supreme Court, frequently invoke the
ramifications of a particular ruling as an importing deciding factor, on par
with the actual interpretation of the law. Whereas conservatives seem more
concerned with just reading the law's words, and applying them to the case at
hand.

~~~
evgen
Read some Scalia decisions to see how your second paragraph is pretty naive
and inaccurate... Hunt up a book by Richard Posner (7th circuit judge and
blogger) called How Judges Think for interesting insights as well.

------
JoeAltmaier
I agree, the Founding Fathers believe rights are inherent in being human, and
given by God. The had no use for atheists. I am mostly an atheist myself,
still I am aware I am born into a country founded on faith and pragmatism
both. This is not wholly a bad thing. Those that attack simple expressions of
faith stand on uncertain ground. Whose interests are served by denigrating
faith?

~~~
lionhearted
The First Amendment to the Constitution has this in it:

> Congress shall make no law respecting an establishment of religion, or
> prohibiting the free exercise thereof; or abridging the freedom of speech,
> or of the press; or the right of the people peaceably to assemble, and to
> petition the Government for a redress of grievances.

Requiring the Pledge of Allegiance to the Republic to include affirming a
monotheistic God seems a lot like "mak[ing a] law respecting an establishment
of religion", which is prohibited.

There are people who are polytheistic and people who are atheists. If taking
the Pledge of Allegiance is required for civil service or military service,
you're putting them into a rather uncomfortable position.

Edit: I generally dislike the Pledge of Allegiance anyways. If you look at the
words - "I pledge allegiance... to the flag... of the United States of
America... and to the Republic, for which it stands, one nation, under God,
indivisible, with liberty and justice for all" - it's just not particularly
well formed. Pledging Allegiance to the flag first, then it's not clear what
"the Republic for which it stands is" - who am I pledging allegiance to? To
the federal government? To the States? To the federalist federal/state mix? To
the idealized version of American values? If there's a conflict between my
state and the federal government, who exactly have I pledged my loyalty to?
And what is entailed in allegiance? It's just a murky, hazy, not well thought
out thing. And we start doing it at five years old or whatever, which is far
too young to understand the implications of the Oath of Loyalty that you're
taking.

As an example of a much clearer and better oath, here's the United States
Marine Corps Oath: "I, (name), do solemnly swear (or affirm) that I will
support and defend the Constitution of the United States against all enemies,
foreign and domestic; that I will bear true faith and allegiance to the same;
and that I will obey the orders of the President of the United States and the
orders of the officers appointed over me, according to regulations and the
Uniform Code of Military Justice. So help me God." Very clear exactly what
you're pledging, to whom, and what your duties are, and who you ask if you're
not clear on what your duties are. And Marines take it voluntarily, knowing
the weight of what it entails.

~~~
euroclydon
I agree. Pledging allegiance is a sham. The only reason folks are so enamored
with the our republic is because it was wrought out of the last frontier, by a
bunch of non-conformist misfits, who, guided by Jefferson and other folks,
like Lafayette implemented a radical form of government which attempted to
really treat folks as free (slaves are another issue). That lasted for about
140 years. Now our content with the government should be commensurate with the
degree in which it steps out of the way, and does not simply exist to support
the status quo. That was what was so special about America to begin with:
there was no status quo!

------
lionhearted
Also:

> "Instead, to the joy or relief, as the case may be, of the two members of
> the majority, this court's willingness to abandon its constitutional
> responsibilities will be praised as patriotic," Reinhardt wrote, "and may
> even burnish the court's reputation among those who believe that it adheres
> too strictly to the dictates of the Constitution or that it values
> excessively the mandate of the Bill of Rights."

I had to re-read that once to get it, but wow - zing. What a fantastic way of
putting it. "may even burnish the court's reputation among those who believe
that it adheres too strictly to the dictates of the Constitution or that it
values excessively the mandate of the Bill of Rights" - what a subtle,
wonderful criticism.

------
billpg
You Americans _still_ have your children say this (with or without the god
mention) every day? That's insanity.

~~~
bediger
The children who can think actually know that this is insanity, as do the
Enforcers of this insanity who can think. Still, the insanity continues.

