September 15, 2005

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.

'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.


Unknown said...

The term "judicial activism" has frequently referred to striking legislation. When a court declares a law unconstitutional, they set up the guidelines within which any future law must remain. It can be seen as, in effect, legislating from the bench.

But there's no judicial activism here. Quite the reverse. They are just following the precedent set by the previous Newdow case, because the SCOTUS chose not to reach the ultimate issue in that case.

Jason said...

I just think that it is funny how serious people take this. It is amazing how little the kids pay attention to the pledge. I have a couple of students that say it real loud, but that is because they are tryoing to get laughs out of people (which they do, every damn day). I sure as shit don't pay attention to it, when they are doing the pledge I am off doing attendance, getting breakfast orders straight, or getting my lesson ready. It is just a waste of time.

Unknown said...

I still can't get over the shocking level of ignorance and stupidity contained in that block quote. Craziest ruling in American history? What!? Not Plessy? Not Dred Scott? Not Korematsu?

And the SCOTUS didn't step in to end the insanity. They stepped in and chickened the fuck out by overturning the 9th Circuit on technical grounds. They said Newdow didn't have standing to bring his claim. He has standing now. Disagree with the holding all you like, but this court did the only thing it could do... it followed established and uncontroverted precedent.

That quote is just shockingly stupid.

Oh, I don't say this enough, so: Great post, Noumena.

MosBen said...

I'm really torn on this issue. On the one hand, I think the Pledge absolutely violates the establishment clause and, or at least the 'under God' part, really should be done away with. On the other hand, I do think that not only is it one of the less pressing problems in society today, I don't think it resonates with the the majority of the voting public. Actually, I think the majority of the voting public thinks, at best, that the people supporting this are crazy/stupid.

As someone that cares a lot about getting peopl on the left into office, I'm not sure that really pushing this issue helps us. Still, I think he's right.

Unknown said...

You're God-damn right, MosBen. I absolutely support Newdow's and the plaintiffs' right to bring this action. I just wish they wouldn't. It's not important, and the blowback is a bitch.