June 17, 2004

It's Pledge week here at Radosh.net

No, I'm not asking for money. Just posting compulsively about the Supreme Court ruling on the Pledge of Allegiance.

The problem with knowing almost nothing about actual law (as opposed to the ideas or policies that the law addresses) is that I'm ill equipped to spot flaws in other people's analysis.

The other day I said that Dahlia Lithwick had persuaded me that the court ruled correctly on the issue of standing. Today on Find Law, Marci Hamilton brings up a point I hadn't thought of.

Hamilton says simply that in custody matters, the state is almost always the final arbiter and the federal courts simply shouldn't get involved. That is, even if the 9th Circuit was wrong (and she doesn't say they are, though I still think Lithwick was correct about that), its ruling should stand. Now, I thought the Supreme Court was supposed to correct poorly-decided lower court cases, but perhaps because this is strictly a state matter, Hamilton is right.

Those who could give a shit about standing but want some meaty but accessible discussion of the Pledge itself should skip to part two of Hamilton's column.

Here's some of what she says.

On Rehnquist's defense of "under God": "According to Rehnquist, the phrase is fine as long as it means "that God has guided the destiny of the United States . . . or, that the United States exists under God's authority" - for after all, in his view, who could argue with those facts? The answer is that these are not facts, but rather expressions of a religious worldview, and if that is what "under God" means it is--without question-- unconstitutional."

On what Thomas gets right: "He writes that if Lee v. Weisman was rightly decided, then the "under God" phrase in the Pledge is fine. In Lee, the Court held that a high school graduation could not include a prayer sponsored by the school. The Court reasoned that the students were susceptible to coercion when they could not attend their graduation without being subjected to a prayer by the school...Thomas does not believe Lee was rightly decided. But he argues persuasively that as long as it remains good precedent, it is controlling in this case.... The Court must either decide, consistent with Lee, that an "under God" pledge is unacceptable, or overrule Lee."

She wraps up with an explanation of that bit that confused me earlier -- why Thomas thinks the Establishment Clause does not apply to the states -- and proposes a counter-argument (though she does not raise the one that came up in an earlier comment, that regardless of whether that part of the US Constitution is incorporated into state laws, California's constitution has its own Establishment Clause).

Posted by Daniel Radosh


Ever since this whole thing began I have been wondering why, when there are so many other really important things to hitch ones wagon to, the fact that "Under God" is in the Pledge is such a big deal. There have been agnostics, atheists, and others that just don't give a crap about religion since time began. Why all of a sudden does this matter? Ditto prayer in school. If you do not want to have a moment of prayer to start your day, just don't do it! No one is holding a gun to anyone's head. Drop the drivel and lets take a harder look at things that matter like getting G.W.B out of office!!!!

When it comes to the Pledge I more or less agree. I've said before that I consider this a non-issue of importance to few people beyond Michael Newdow. Since he managed to get it to the Supreme Court, however, I do think it's incumbent upon them to uphold the Constitution, however much that bothers people. That's the part that interests me.

Organized school prayer is a different story. A teacher or a deputized student standing in front of the class leading a prayer is more or less the same as a gun to the head for all most little kids would be able to resist. But rather than go into that, I'd turn your argument back on the people who want to re-institute organized prayer: if you want to have a moment of prayer to start your day, just do it! But make it a private thing that people who don't want to pray don't have to be a part of.

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