Pledge Fight 2: This Time, It's Personal

A federal district court has, once again, found the mandatory Pledge of Allegiance in public schools to be unconstitutional. Just like last time, this probably isn't going to go anywhere, nor is it all that important; but, as someone who cares a lot about church/state separation, it's nice to see Newdow working on this.

Newdow:

'I'm passionate about treating people equally. Imagine you send your kids to school every day, and the teachers made them stand up and say, 'We are one nation that denies God exists.' Imagine you are Jewish, and they say, 'We're one nation under Jesus.' Imagine you are Christian, and they say, 'We're one nation under Mohammad.'

Conservatives, surprisingly, are bitching about 'judicial activism', which apparently now covers 'declaring laws unconstitutional'. I say 'surprisingly' because I figured it's only 'legislating from the bench' when the judge requires you to do something, not prevents you from doing something. Like when they required priests in MA to marry gay couples, or when they require criminals to go to jail. Or something. Wait, I think I just hurt my brain.

"This is another bad ruling that warps the U.S. Constitution and dashes parents' hopes of patriotism in the next generation," said Randy Thomasson, president of the California-based Campaign for Children and Families. "When the Ninth Circuit Court of Appeals delivered the craziest ruling in American history by striking down the pledge three years ago, the Supreme Court stepped in and stopped the insanity. The lower courts striking down the pledge again is like a dog returning to its vomit."

Note that the Supreme Court didn't toss out the 5th Circuit's ruling because the arguments were incoherent and irrelevant, the way they did with some of Roberts' more creative anti-abortion arguments. They said Newdow, as the non-custodial parent, didn't have grounds to sue. That won't work here, because the parents who sued are their children's legal guardians. At least, I hope Newdow isn't making the same mistake as last time.

(Incidentally, I met Michael Newdow once. He's an extremely intelligent and likeable man, and the whole non-custodial parent thing is a really sore spot for him; he started studying law when he was denied visitation rights with his daughter.)

Now, a familiar conservative line here is that children can 'opt-out' of saying the pledge: they can go sit out in the hallway while the rest of the class, lead by the teacher, recite it. Not only is this disingenuous, it is irrelevant. The opt-out clause is disingenuous because it pretends peer pressure doesn't exist, or that being physically removed from class isn't marginalizing. Newdow's quote above makes exactly this point.

The opt-out clause is irrelevant because the *teacher*, in their capacity as a state employee, is still privileging one particular form of religious belief over others. It doesn't matter whether little Sally Q. Atheist is standing out in the hall, covering her ears, home sick, or even looking around self-consciously while she mouths the words: the teacher-led pledge still takes the form of an enunciation by the state of a particular religious belief.