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View Poll Results: What will they rule?
Violates church/state 6 30.00%
Doesn't violate 14 70.00%
Voters: 20. You may not vote on this poll

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Old 03-24-2004, 08:26   #1
NousDefionsDoc
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Supreme Court to Take Up 'Under God'

http://story.news.yahoo.com/news?tmp..._of_allegiance
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Old 03-24-2004, 09:21   #2
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Tough call

Especially since Scalia recused himself

Here is an interesting poll taken on this issue

Supreme Court takes up Pledge of Allegiance case, new poll shows support for salute

This part doesn't shock me at all

Quote:
The AP poll, conducted by Ipsos-Public Affairs, found college graduates were more likely than those who did not have a college degree to say the phrase "under God" should be removed. Democrats and independents were more likely than Republicans to think the phrase should be taken out.
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Old 03-24-2004, 09:38   #3
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I'll play the bad guy on this one....

My thoughts:
It should never have been put into the pledge of this country in the first place. I personally don't like the religious based phrase in the pledge or on our currency. I say this as someone who goes to church and takes his children to church. It is a separation of church and state issue to me. I strongly favor this protection for our citizens. One can look the Middle East if you need to see examples of the problems that this can create.


That being said, I have no interest in litigating the matter now. It is water under the bridge as far as I am concerned. I just oppose any NEW government actions that murky up the water between separation of church and state.
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Old 03-24-2004, 09:44   #4
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Where do you live?
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Old 03-24-2004, 09:49   #5
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A question for our attorneys -

Does it matter that the girl named in the lawsuit is against what her father is doing and that the girls mother is also against him using their daughter in this manner ?
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Old 03-24-2004, 09:52   #6
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my .02.

I would say so DunbarFC since the basis for the complaint was the daughter.
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Old 03-24-2004, 12:11   #7
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I start a SCOTUS thread for the lawyers and not one of them responds?
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Old 03-24-2004, 12:46   #8
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Not my own view, but fuel for the fire...

-------------------------
Of God and the Flag

By WILLIAM SAFIRE, Op-Ed Columnist, The Times, March 14th

WASHINGTON — As a very little boy, I thought the opening words to the recitation required at school every morning were "I led the pigeons to the flag." Seemed odd, but I figured the teacher knew best.

In my 20's, I noticed how the rhythm of the assertion of national unity at the conclusion of the Pledge of Allegiance — "one nation, indivisible, with liberty and justice for all" — was broken into by the insertion by Congress in 1954 of the phrase "under God" between "one nation" and "indivisible." As a geezer today, I sometimes trip over the inserted piety in recitation.

This morning, the U.S. Supreme Court will hear the argument of an atheist who persuaded the Left Coast Court of Appeals to strike that religious phrase from the pledge recited in public school. Michael Newdow, appearing pro se, without counsel, will urge the court to affirm the decision to which a vast majority of us object.

In my view, the complaining atheist has no "standing" to bring the case in the first place on behalf of the schoolchild. He never married his daughter's mother. She is a self-described "committed Christian" who has been rearing their child and wants her daughter to recite the pledge.

Solicitor General Ted Olson, the most effective constitutional lawyer in the nation, can be expected to start by challenging the father's standing to sue. However, Justice Antonin Scalia, the court's sternest stickler on standing, has disqualified himself because he expressed his opinion prejudging the "under God" phrase in a speech last year. (For proper standards on recusal, read Scalia's persuasive memo on his Cheney nonrecusal at http://www.supremecourtus.gov/opinio...df/03-475.pdf.)

On wider grounds of the traditional recognition of the deity in American political life, Olson could point to the words "In God We Trust," put on our coins in Lincoln's time. Or the fervent reference to "the Creator" as the source of our rights that Jefferson put in our Declaration of Independence. Or the words opening this morning's session: "God save the United States and this honorable court."

Even George Washington, at the end of taking the oath of office as prescribed in the Constitution, was moved to ad-lib the phrase "So help me God," which has been added by most presidents being inaugurated since. This sort of general public reverence is part of our political culture.

So what's the big deal about "under God" in the Pledge of Allegiance? President Bush has written that the current pledge is a way of "humbly seeking the wisdom and guidance of divine providence."

John Kerry said on Boston television in 2002 that the Ninth Circuit ruling holding "under God" in the pledge unconstitutional was "half-assed justice . . . the most absurd thing. . . . That's not the establishment of religion." Michael Dukakis vetoed a Massachusetts bill requiring teachers to lead classes in the pledge and paid dearly for it in his presidential campaign. That bill is now law, as are similar statutes in 42 other states. These laws do not conflict with the High Court's 1943 decision that no student can be penalized for declining to take the pledge.

Agreeing with both Bush and Kerry in support of "under God" are majorities in both houses of Congress and attorneys general of all 50 states. From the liberal National Education Association and American Jewish Congress to the conservative American Legion and the Knights of Columbus (which sponsored this addition 50 years ago), under-God-ers have weighed in with briefs. Opposing are the Atheist Law Center, the A.C.L.U., A.D.L. and assorted iconoclasts.

The only thing this time-wasting pest Newdow has going for him is that he's right. Those of us who believe in God don't need to inject our faith into a patriotic affirmation and coerce all schoolchildren into going along. The key word in the pledge is the last one.

The insertion was a mistake then; the trouble is that knocking the words out long afterward, offending the religious majority, would be a slippery-slope mistake now.

The justices shouldn't use the issue of standing to punt, thereby letting this divisive ruckus fester. The solution is for the court to require teachers to inform students they have the added right to remain silent for a couple of seconds while others choose to say "under God."

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Old 03-24-2004, 14:23   #9
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Quote:
Originally posted by DunbarFC
A question for our attorneys -

Does it matter that the girl named in the lawsuit is against what her father is doing and that the girls mother is also against him using their daughter in this manner ?
Yes. The legal term is standing. It is actually the first question before the Supreme Court:

"1. Whether respondent has standing to challenge as unconstitutional a public school district policy that requires teachers to lead willing students in reciting the Pledge of Allegiance."

The standard requires the plaintiff to prove that "(1) it has suffered an 'injury in fact' that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992)). Parents generally are allowed to assert standing on behalf of their children: "Parents have a right to direct the religious upbringing of their children and, on that basis, have standing to protect their right." Doe v. Madison Sch. Dist. No. 321, 177 F.3d 789, 795 (9th Cir. 1999) (en banc).

The Ninth Circuit held that Newdow had standing to sue one of the school districts because his daughter was a student in the school district. The court also held that "Newdow has standing in his own right to challenge the facial constitutionality of the 1954 Act amending the Pledge because 'the mere enactment of a statute may constitute an Establishment Clause violation,' and the 1954 Act amounts to a 'religious recitation policy that interferes with Newdow's right to direct the religious education of his daughter'" (quoting the petition for writ of certiorari).

After that first appeals court ruling, the mother stepped in. Another hearing was held, and the court held that he still had standing. He couldn't sue on his daughter's behalf, but he could still sue on his own behalf. Even though he didn't have custody, he still had some parental rights. Also, the court held that the mother's opposition didn't matter if the law itself was unconstitutional, saying the mother "has no power, even as sole legal custodian, to insist that her child be subjected to unconstitutional state action."

The petition of the United States asserts numerous errors in this analysis, but they are rather detailed. Suffice to say, the issue is whether his more limited rights as a non-custodial parent were injured by the state action and whether the lower court conflated a standing question with a question on the merits ( "The requirement of standing 'focuses on the party seeking to get his complaint before a federal court and not on the issues he wishes to have adjudicated." Valley Forge Christian Coll. v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 484 (1982)).

As a rule, the Supreme Court prefers to decide cases in the way which best leaves existing law settled. They will not decide a constitutional question if the dispute can be settled on statutory, procedural or other grounds. If the Court finds that Newdow lacked standing, they may overturn the Ninth Circuit on that and never even address the constitutionality of the pledge itself.
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Old 03-24-2004, 15:08   #10
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BTW, Sacamuelas, what is all this "separation of church and state" talk? There is no such principle in American constitutional law.

Regarding religion, Amendment I to the U.S. Constitution says this: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;...." There are two parts to this, commonly referred to as the Establishment Clause and the Free Exercise Clause. The Establishment Clause more narrowly prevents Congress from establishing a state church, like the Church of England is. The Free Exercise Clause prohibits Congress from making laws targeting religious expression (laws of general applicability which impact religion, though, may be OK; an example would be health codes that impact Santeria rituals). The First Amendment has been incorporated through the Fourteenth Amendment and applies to states as well as the federal government .

In the Pledge case, the second question before the Court is this:

"2. Whether a public school district policy that requires teachers to lead willing students in reciting the Pledge of Allegiance, which includes the words "under God," violates the Establishment Clause of the First Amendment, as applicable through the Fourteenth Amendment."

So this is an Establishment Clause case. Does having teachers in a public school lead recitations of the Pledge "establish" religion? In the narrow sense, it does not. "Under God" is fairly generic and doesn't represent state sanction of a particular church. The question as it has developed over the past few decades though, is that while it is accepted that the state must remain neutral among different religions, not giving one official sanction over another, is it also required that the state be neutral between religion and irreligion?

Atheist advocacy groups, naturally, maintain that the latter is required, but nothing in the history of the US or the text of the Establishment Clause would seem to require it. In fact, at the time of the adoption of the Amendment, not only were many states not neutral between religion and irreligion, but they had established churches (which would no longer be permitted under the Fourteenth Amendment). And there is a litany of Supreme Court cases holding that while certain sectarian displays might offend the Establishment Clause, the extreme view that any mention of religion by government is unconstitutional is not accepted. These include matters such as the prayer at the opening of congressional and Supreme Court sessions, oaths of office that mention "so help me God" and the "In God We Trust" on currency. There is no wall between church and state in US law.
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Old 03-24-2004, 15:12   #11
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Thank you!
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Old 03-24-2004, 15:14   #12
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Thank you very much AL for that great explanation !
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Old 03-24-2004, 15:19   #13
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Thumbs up

AL- I will have to read your posts thoroughly when I have more time. Thanks for giving such a good overview of these issues. I really appreciate hearing a well educated interpretation of the issues of this case.

My post was a much more simplistic and legally undefined argument than this particular case before the SCOTUS seems to reference after reading your posts.

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Old 03-24-2004, 15:58   #14
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Is it important for the state to be religious as opposed to irreligious?

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Old 03-24-2004, 16:20   #15
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Al-
After rereading you excellent summary of the issues being brought before the SCOTUS, I was attempting to address concerns I have that relate to the establishment clause in the 1st ammendent.

The 9th Circuit court noted , "A profession that we are a nation 'under God' is identical…to a profession that we are a nation 'under Jesus,' a nation 'under Vishnu,' a nation 'under Allah,' or a nation 'under no god,' because none of these professions can be neutral with respect of religion. The coercive effect of this policy is particularly pronounced in the school setting given the age and impressionability of schoolchildren, and their understanding that they are required to adhere to the norms set by their school, their teacher and their fellow students."

In 1954, Congress inserted the phrase "under God" into the Pledge after a lobbying campaign led by the Knights of Columbus. This was during the McCarthy era, and the change was seen as a blow against the "godless communism" in the Soviet Union. Until then Americans used to end the Pledge, "one nation, indivisible, with liberty and justice for all." Americans thought the Pledge was just fine as a patriotic ritual without religious references from 1892-1954. After all, America survived the Great Depression and won two world wars with a secular Pledge, and neither religious devotion nor patriotism suffered. The Pledge was a purely patriotic exercise until Congress in 1954 made it a patriotic and religious exercise.

What is purpose/value of reciting the pledge? If you are like me, it is a patriotic oath that expresses support for our country. If you agree, then why would anyone here have a problem with our public schools using the original version of the pledge? Is there someone here that thinks it is not as patriotic as the currently used version?

Last edited by Sacamuelas; 03-24-2004 at 16:23.
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