I am inclined to think that there is far more here than what the press reported.


Maybe I'm a little cynical, but the procedural posture of the case and the substance of the opinion suggest (to me, anyway) that this may have been a calculated move by a senior district judge to underscore his dismay at the current state of Establishment Clause jurisprudence. (I discuss this far more extensively at the linked post.) A show of judicial bravado to make a rather bold point.


Either way, this is far from over.

I think your analysis may have been a bit simplistic at the linked cite with respect to the Supreme Court's decision having made the case a "non-case," thereby nullifying the 9th Circuit's opinion. I'm not adept at navigating in those murky appellate waters, so that may well be the effect, but I think this statement by the judge in the current case has to be dealt with:

It is established that there is a distinction between a case being reversed on other grounds and a case being vacated. A decision that is reversed on other grounds may still have precedential value, whereas a vacated decision has no precedential authority.

. . .

[W]here an opinion is reversed on prudential standing grounds, the remaining portion of the circuit court's decision binds the district courts below. Contrary to the urging that a "fresh look" is demanded by Steel Co., this court remains bound by the Ninth Circuit's holding in Newdow III.

The substance of the 9th Circuit decision is described as follows (citations omitted):

In Newdow III, the Ninth Circuit applied the “coercion test” formulated by the Supreme Court . . ., and concluded that the district’s pledge policy “impermissibly coerces a religious act.” The court determined that the school district’s policy, like the school’s action in Lee of including prayer at graduation ceremonies, “places students in the untenable position of choosing between participating in an exercise with religious content or protesting.” The court observed that the “coercive effect of the policy here is particularly pronounced in the school setting given the age and impressionability of schoolchildren . . . .” Finally, the court noted, that non-compulsory participation is no basis for distinguishing it from West Virginia State Board of Education v. Barnette, where the Court held unconstitutional a school district’s wartime policy of punishing students who refused to recite the Pledge and salute the flag. The Ninth Circuit concluded that even without a recitation requirement for each child, “the mere presence in the classroom every day as peers recite the statement ‘one nation under God’ has a coercive effect.” “The ‘subtle and indirect’ social pressure which permeates the classroom also renders more acute the message to non-believing school-children that they are outsiders.”

Doug:


I will grant that my analysis on the point you raise is probably over-simplified, especially given that most of my present readers are non-lawyers and that I dashed that post off well past my normal "close of business". I actually considered the criticism you raise when I awoke this morning.


So, "non-case" is perhaps an overstatement. All the same, I am still skeptical of the method Judge Karlton used to get from point A to point B. The Ninth Circuit case he cites as the "route to prudential standing", for example, strikes me as off-point and limited on its own terms to a different factual scenario: where the prevailing party wants to appeal on the basis of potential losses from adverse collateral attacks.


Maybe it could ultimately pass muster, but I just don't see it on these terms.

A layman's opinion: Arguing that allowing the word God in the Pledge is okay because the word is no longer religious is hogwash. I appreciate Mr. Newdow for calling a spade a spade. The Supreme Court has been doing a dance around this issue as it applies to the Ten Commandments, the Pledge, etc. I just don't agree with Mr. Newdow.

With regard to the coercive nature of the pledge, I say coerce away. We should remember that it is intended to be coercive, to help form a collective identity in our children as Americans, as opposed to radically autonomous individuals with the right to be left alone. If the pledge is coercive it is so in a good sense. The question becomes what specific values do we wish to form in our children. Do our rights come from God or from the Government?

I have heard it said that the Declaration of Independence and Constitution acknowledge that our rights are merely recognized by the government as inalienable, because they come from a higher power. If so, it is appropriate and even necessary to acknowledge it. If not, then the alternative is that our rights are granted or taken away by the government, as the government assumes the position of sole source of those rights. This is the value I wish to teach my children vis a vis the government.

If this is the lesson, or a lesson, in the Pledge of Allegiance, then as a people we may insist upon it.

It is also critical to understand that throughout the history of mankind God (or the gods) has been at the center of society and government. Rene Girard would argue that in every group of humans a primal, collective murder of a scapegoat gave rise to its religion and helped organize society. The notion of God and society are linked in their genesis. It is an act of hubris to dispense with it, while it is also important to transcend the scapegoat mechanism embedded within society. This is a fascinating way to look at the history of Western society. Compare and contrast.

Craig Silverman interviewed Michael Newdow yesterday on his show (630 AM radio in Denver). Silverman asked a caller who disagreed with Newdow's position why he didn't recite the pledge at home with his children, and that we should be concentrating on reading, writing, arithmetic, and science in school. (Why spend so much time fighting to take God out of the pledge then, one might ask).

As I was driving down the I-25 it occurred to me to ask what was the difference between saying the pledge in private versus saying the pledge with one's classmates and teachers in school. It is obvious that there are a host of social, civic, communal factors involved in saying the pledge in the classroom. It's supposed to form pride in one's country, a sense of duty to one's country, a sense of civic responsibility, a sense of corporate identity. This is not just a right but a responsibility.

There will always be those who dissent, such as Michael Newdow who claims to know that there is no God, but there have to be sage persons with authority who say, yes, I understand your objection: overruled.

I have heard it said that the Declaration of Independence and Constitution acknowledge that our rights are merely recognized by the government as inalienable, because they come from a higher power. If so, it is appropriate and even necessary to acknowledge it. If not, then the alternative is that our rights are granted or taken away by the government, as the government assumes the position of sole source of those rights.

First, it's a legal fiction that these things are inalienable. People are alienated from life, liberty, property, and the pursuit of happiness all the time. Often times without due process of law.

But, second, if they were inalienable it would be because We the People say they are; not because a theoretical Higher Power made them so. An omnipotent, omniscient God could make these things truly inalienable. He didn't. That's why we had to come up with a legal structure. It may be imperfect, but it's something we created for ourselves. We should be proud of that.

While I sure these folks would agree with you on how our rights are secured, they don't appear to agree with you on where they came from.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just Powers from the consent of the governed.