<buckeye-ELO@nospam.net> wrote in message
news:4hee60te41gmhvmu093af04vt992oag55a@4ax.com...

A truly outstanding article on the Pledge by a conservative

Constitutional

lawyer and Professor

The Court Hears Oral Argument in the "Under God" Pledge of Allegiance

Case:

Why the Court Should Reject This Pledge, and Why the Department of Justice
Is Wrong To Support It
http://writ.corporate.findlaw.com/hamilton/20040325.html

I thought it worth posting the whole message. ((With my comments in (( ))
double brackets.))

" Thursday, Mar. 25, 2004

Yesterday, March 24, the Supreme Court heard oral argument in the Pledge of
Allegiance case, Elk Grove Independent School District v. Newdow.

In the opinion below, the U.S. Court of Appeals for the Ninth Circuit
famously ruled that the phrase "under God" in the Pledge of Allegiance that
is recited by school children is unconstitutional. According to the Ninth
Circuit, the inclusion of "under God" in the Pledge amounted to endorsement
by the school of a religious viewpoint.

Various groups protested loudly, but as I discussed in a previous column,
the Ninth Circuit's reasoning is impeccable. The Department of Justice's
attacks on the pledge have been misguided. And the Supreme Court, if it were
to reverse the Ninth Circuit, would be making a serious mistake.

Moreover, that mistake will have implications not only for religious freedom
in this country, but also for international perceptions of the United
States.

The Oral Argument in the "Pledge" Case

The oral argument was split between two issues: standing and the
Establishment Clause. There is some question whether the petitioner, Michael
Newdow, who is the father to the girl on whose behalf the lawsuit was
brought has standing to challenge the Pledge, because he does not have
custody.

It is conceivable the Court could "dig" (deny certiorari as improvidently
granted) the case on standing grounds or address solely the standing issue,
but the temper in the courtroom did not seem inclined to avoid the
substantive issue. I think it would be unlikely that the Court would lightly
reach for a standing decision that could have such far-reaching state family
law ramifications.

That leaves the Establishment Clause issue: Has the Elk Grove Unified School
District endorsed religion by having its teachers lead its students in the
Pledge, with its phrase "one nation under God"? On this issue, this is an
extremely important case for the following reason. Not only is Newdow a
father, he is also an atheist. We as a country need to listen to his
minority viewpoint with some care here.

Newdow is saying with this lawsuit and his many public appearances that
knowing his child is being led to say "one nation under God" on a daily
basis makes him feel disenfranchised. The Pledge, which touts "liberty for
all," is being used to inculcate his daughter in a religious worldview he
cannot accept. In other words, the state is displacing his role in educating
his daughter on religion, and therefore "under God" is unconstitutional.

One would have thought that conservatives would have sided with the parent's
right to raise one's child according to one's own religious beliefs, but as
the Framers understood only too well, one should never underestimate the
powerful temptation to extend one's power when one can.

((No. The conservatives just, as they accuse the liberals of doing. want to
push THEIR agenda on everyone!))



If anyone thinks that this case is not about the power of the entrenched
religious versus the powerlessness of nonbelievers in this society, today's
oral argument proves them wrong. Chief Justice Rehnquist floated several
proposals to defend "under God." First, he stated that the two words were
not really a "prayer," a distinction without a difference.

((Being a prayer - or not - has NOTHING TO DO WITH THE ARGUMENT!))



But his second point led to the most enlightening moment of the day. The
Chief noted that Congress unanimously added the two words "under God" in
1954, implying that no one found it offensive then so how could it be
offensive now, or perhaps worrying that the Court was in no position to
quibble with Congress when it acted with such unity.

((Ridiculous! All that showed - along with what was shown in Newdon's
arguments - is that the LEGISLATORS weren't offended. As we ALL know - those
same legislators can, and often, do MANY things that offend us!

There is also the VERY real possibility that legislators.politically, could
not afford to vote against the addition. Just as voting against Bush's
wishes after 9/11 - it would have been political suicide.

Again, even in Congress, we have the zealous will of the majority SILENCING
those who would dissent!))





But Newdow responded with the undoubtedly true statement, "That's only
because no atheists can be elected to office." And when he did, other
atheists in the audience began to clap.

They immediately proved his point. As atheist, he is disenfranchised
precisely because of his beliefs. He cannot be secure in knowing the school
district will not try to inculcate his daughter in the majority religion, he
cannot be elected to office, but more importantly, he cannot even argue a
case at the Supreme Court--that most hallowed of courtrooms--without being
reminded that he is not in the majority. The preference for "under God"
cannot be separated from the desire to suppress conflicting beliefs.

On matters of conscience, it is the Supreme Court's most solemn duty to
protect vilified minorities from the majority's demands. From the
perspective of the freedom conscience, it is obvious that Newdow should win.

The Solicitor General's attempt to defend "under God" is not persuasive.

The Department of Justice's Misguided Defense of the "Under God" Pledge

The Department of Justice's first mistake was to choose to defend the "under
God" pledge in the first place.

The original Pledge was drafted by a Methodist minister, yet did not include
the words "under God." That phrase was only added later, by Congress, to
distinguish America from "godless communism."

Congress's addition is not worth defending. What distinguishes the United
States from Communist societies is that we tolerate the godless and
god-loving alike, not that we favor the god-loving.

The Department of Justice's second mistake was to argue that the phrase
"under God" is just surplusage -- like the phrase "In God We Trust" on
United States money. According to the Department of Justice, the phrase, in
modern times, retains no meaning that could possibly be interpreted as
government endorsement of religion.

((If that were the truth - then NO ONE would think it important enough to
fight AGAINST removing the phrase!!!!

Obviously both those who put it there, and those who, today, defend it -
think it important!!))



Add to the federal government's reductionist reading of "under God," the
fundamentalist Christian groups' suggestion that the complete cultural
heritage of the framing generation rests on securing "under God" in the
Pledge -- and one can understand why the United States sometimes appears to
the rest of the world to be a bit unbalanced.

The language on the money is surely surplusage, because everyone can and
does use money everyday without reading or reciting the language. But no
school child orally recites "under God" without knowing what is being said
or without being affected by it.

Would the Department of Justice argue as well that the phrase "and liberty
for all" is just surplusage, drained of any possible meaning by its endless
repetition? Surely not. That phrase has inspired children for decades, and
properly so.

It's plain and simple endorsement of a particular religion -- as the Ninth
Circuit held -- and the Court will have to tie the Establishment Clause into
a pretzel to make it anything else.

If one wants to make the point this is a religious culture, it would be far
more effective to eliminate "under God" and observe true religious liberty
by encouraging every school child to believe in "liberty for all" without
the caveat.

Many of the Framers believed in the Christian God, but plenty of the framing
generation were nonbelievers, and nonchurchgoers, as well. They founded the
United States and its Constitution to create the "freedom of conscience,"
not some safe haven for only a likeminded hegemonic majority. The latter was
precisely what they escaped in Europe.

The Framers wanted not to entrench a permanently Christian nation, but
rather to free every citizen from the government's despotic ability to
direct citizens to believe what the government approved. This is a glorious
heritage that is imperiled, not enriched, by insisting on the Christian
God's solitary place of honor in a pledge to the values of this country.


The International Political Context: The Danger of Domestic Intolerance in a
World of Religious Terrorism

Not only Americans have been watching to see what position the Department of
Justice and the President take in this case. The message the Department of
Justice is sending to our enemies is that we indeed are godless infidels.
Even the God in which so many profess belief is just a placemarker in a rote
public ritual imposed on children every morning.

Even more troubling was the President's response to citizens who wrote
letters to him denouncing the decision. As Linda Greenhouse pointed out in
the New York Times, he declared that the Pledge showed "our reliance on
God."

If by "our," the President meant those who believe what he believes, the
letter should have been sent on his personal stationery, not that of his
office. Alternatively, if by "our" he meant every citizen, he was
fundamentally misguided, because not every citizen believes in his God;
indeed, many do not, and chief among them right now is Michael Newdow, being
disenfranchised once again.



((Anyone with a rational mind knows that George Bush does not give a damn if
he disenfranchises anyone who cannot help him get elected!))





Under our Constitution, the nonbelievers are still citizens, with all
rights, including the right to a President that is neutral toward all
religious viewpoints.

It is becoming increasingly necessary to pose the question: Has anybody in
the White House ever read the First Amendment past the Free Exercise Clause?
The Establishment Clause is just as crucial in preserving liberty for all,
even if following it does not serve some narrow interest group.


There has never been a time in United States history when it was more
important for the government to maintain scrupulous neutrality with respect
to religion. It is abidingly important to show that this country stands for
freedom for every faith. Here, every conceivable belief can be accommodated,
and the number of denominations, sects, and beliefs that inhabit this
country is breathtaking. That is what makes the United States
distinctive--better--if you will.

To endorse Christianity, is to show ourselves as hypocrites to liberty-- and
to provide fresh fodder for critics. Only if the government stays neutral on
matters religious, can it persuade the world that this world war is over the
right to be free, not a holy war.

The war on terror is only a religious war if President Bush permits himself
to characterize us as a people unified by a single religion. We are not--we
are a tolerant people united by a passionate devotion to the Pledge's
"liberty for all."

For these reasons, it is not only the right thing for the Court to find in
favor of Mr. Newdow and the principle of neutrality toward religion in the
First Amendment's Free Exercise and Establishment Clauses. It is also in the
national interest to do so.