AANEWS: A NEWDOW VICTORY FOR A SECULAR PLEDGE

[Synnical]

AANEWS for Sunday, September 18, 2005

<snip>

HOW IT CAN
AFFECT FUTURE HEARINGS AND THE DEBATE OVER "JUDICIAL ACTIVISM"

A federal judge ruled last week that the recitation of the
religionized Pledge of Allegiance in public schools violated the U.S.
Constitution, and said that he was prepared to issue injunctions to
three California school districts in order to halt the daily
recitation of the pledge.

It was the latest round in a series of cases filed by California
Atheist and physician Michael Newdow that have been winding through
the court system.

In 2002, the U.S. Ninth Circuit Court of Appeals ruled in favor of
Newdow who had challenged the inclusion of the words "under God" in
the Pledge. Judge Alfred T. Goodwin wrote in the decision:

"A profession that we are a nation 'under God' is identical, for
Establishment Clause purposes, to a profession that we are a nation
'under Jesus,' a nation 'under Vishnu,' a nation 'under Zeus,' or a
nation 'under no god,' because none of these professions can be
neutral with respect to religion."

The case reached the U.S. Supreme Court, where in June, 2004 the
justices preserved the "God" portion of the Pledge of Allegiance by
stating that Dr. Newdow lacked sufficient legal "standing" to
challenge the controversial practice.

Newdow's petition and victories have ignited controversy, along with a
series of Congressional resolutions to preserve the current version of
the Pledge of Allegiance, and even to remove review of the case and
other practices like displaying the Ten Commandments on public
property from the purview of federal courts.

In Wednesday's ruling, U.S. District Judge District Judge Lawrence
Karlton said that the reference to "one nation under God" violated the
rights of students to be "free from a coercive requirement to affirm
God."

The suit was filed by Newdow pro se with himself and two other sets of
parents against a battery of federal and state defendants including
several California school districts. The case was referred to as
"Newdow III," since he had filed an almost identical suit in March,
2000 when his daughter was enrolled in kindergarten in the Elk Grove
School District. Complicating the case has been a custody dispute
between Dr. Newdow and his estranged wife who has become a public
figure for her support of the "under God" portion of the Pledge of
Allegiance.

Karlton ruled that in the current action (Newdow III), Newdow lacked
standing but the parents had legitimate cause. Nearly half of the
31-page decision (REV. MICHAEL A. NEWDOW, et al., v. THE CONGRESS
OF THE UNITED STATES OF AMERICA, et al.) consisted of a summation of
earlier Newdow cases and issues pertinent to standing. Judge Karlton
devoted approximately ten pages of the written decision to stating
that he was bound by the previous determination from the Ninth
Circuit, and that the school's policy of requiring youngsters to
recite the Pledge of Allegiance violated their rights.

"(T)he claims concerning the Pledge itself are rendered moot," wrote
Karlson.

Pertinent Sections of Latest Newdow Ruling

* The District Court and the Ninth Circuit used the "coercion test"
from the historic LEE v. WISMAN case, "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 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 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 (1943), where the Court held unconstitutional a
school district's wartime policy of punishing students who refused to
recite the Pledge of Allegiance and salute the flag."

What Happens Now?

Legal observers predict that because of Newdow's latest victory, the
onus shifts back to the Supreme Court of the United States. The Ninth
Circuit Court's decision stands, and is in conflict with an opinion
issued last August by the U.S. Court of Appeals for the 4th Circuit
in Richmond, Virginia that upheld a state statute requiring schools to
lead students in a daily recitation of the Pledge of Allegiance
complete with the "under God" phraseology. The oleaginous 4th Circuit
decision, however, suggested that the Pledge was a "patriotic
exercise" and not a religious affirmation like public prayer.

In the wake of the latest ruling, several groups which had supported
the coercive, religionized portion of the Pledge promised immediate
appeal. They included the Knights of Columbus and the Beckett Fund, a
religious advocacy group.

Several GOP senators on the Senate Judiciary Committee which was
holding hearings on SCOTUS nominee John Roberts had their criticisms
of the Newdow ruling inserted into the Congressional Record. Many
complained of "judicial activism" by the courts and judges. One
blog/news site noted, "Some of the references were inaccurate,
suggesting that the judge had struck down the Pledge itself, or that
the ruling had come from the Ninth Circuit."

Future SCOTUS, Other Federal Appointments

The Supreme Court is under no obligation to take up the latest NEWDOW
case, even though there is a conflict between lower Circuit Court
decisions, in the case the District Courts of the Fourth and Ninth
Circuits.

The latest ruling in NEWDOW, however, may have a dramatic impact on
forthcoming debates over Supreme Court and other federal court
appointments, especially given the shrill complaints involving
"judicial activism." The words have become a political buss-phrase,
underscoring allegations from religious conservatives and other groups
that the legal system is "legislating secularism" or "making law" from
the bench that erodes the nation's religious traditions and
underpinning.

Cynics says that the complaint about alleged "judicial activism"
simply refers to rulings that one side or another in an issue happens
to dislike. Kay Daly of the Coalition for a Fair Judiciary, for
instance, called the latest ruling "an extraordinary and blatant
display of judicial activism ... Clearly this is a ruling by a judge
who is obviously an activist who legislates from the bench to enact
his own agenda." Others opine that the accusation could be applied to
judicial findings that outlaw forced segregation, coercive prayer and
other unconstitutional practices.

The NEWDOW case could raise the stakes in an already-heated
confrontation over potential nominees to the Supreme Court and the
rest of the federal bench, and fan the debate over issues like the
role of religion in the nation's discourse, and charges of judicial
activism.

Daly cited the latest Pledge reason as a reason why John Roberts
needed to be placed in the position of Chief Justice.

"He's made it clear that he puts the law and the Constitution first,"
Daly complained. "And he's made it clear that he won't substitute his
own values for the clear commands of the law."

Jay Sekulow of the American Center for Law and Justice, a religious
legal advocacy group founded by televangelist Pat Robertson, described
the NEWDOW case ruling as a "flawed decision" that would be
overturned.

"This is another example of a federal district court exhibiting
hostility toward a time-honored tradition that has been defended by
numerous Justices including Justice O'Connor who said eliminating such
references (to God) 'would sever ties to a history that sustains this
nation even today' ... The Pledge clearly acknowledges the fact that
our freedoms in this country come from God, not government."

And From Atheists...

While drawing the attention and wrath of the religious right, the
NEWDOW case has also generated controversy within America's diverse
and sometimes fractious community of nonbelievers.

While most support his legal intiative, some dislike Newdow's use of
the term "Reverend" -- part of his "First Amendment Church of True
Science" -- and the strategy of fighting the use of the "under God"
portion of the Pledge of Alliance within the rubric of "religious
rights."

Duane Buchholz, Legal Director for American Atheists fears that the
Supreme Court can still avoid the substantive constitutional matters
raised in the latest NEWDOW case.

"I know he (Newdow) wants "under god" out of the pledge and we can
certainly agree with that, but we can't get there from here. The
court did not get to the issue of constitutionality of the present
form of the pledge. That issue was rendered moot because of the
finding that the school district policy requiring recitation of the
pledge was unconstitutional."

Buchholz added: "As the court noted, the issue of compelled recitation
of the pledge was resolved by the Barnette case in 1943, and at that
time "god" was even in it. It will be interesting to see how the
Ninth Circuit deals with this one. My guess is it will point to the
earlier decision and stop there."

Attorney Eddie Tabash, First Amendment activist and once a political
candidate for Congressional office predicted that the NEWDOW case will
like impact future hearings on Supreme Court nominees, including the
choice to replace Justice Sandra Day O'Connor.

"The proper way to view the Pledge case is that it is a vindication of
the viewpoints of everyone on matters of religion," said Tabash.
"By removing 'under god' from the Pledge, it would be extended toward
a universal coverage of all Americans, believers and nonbelievers
because it will now be fully neutral."

[onager]

1. This takes the cake.

Suck-you-low: "The Pledge clearly acknowledges the fact that our freedoms in this country come from God, not government."

Huh? For such a brief statement, there are entire worlds of wrong-headed stupidity in there.

Suck-you-low must be betting that most Americans have never even HEARD the Pledge, or have forgotten completely what it says.

For one thing, only 2 words in the Pledge mention God, and the Pledge itself doesn't even mention our freedoms or where they come from.

Our freedoms come from the the Constitution, which does not acknowledge any such "fact" about the Invisible Sky-Pixie. Is there some God Amendment to the Constitution that I never learned about in school?

As most sane people know, the Constitution only mentions religion twice. And both of those statements are exclusionary.

Finally, it doesn't matter what the pledge "acknowledges," since unlike the Constitution it has absolutely no standing in American law. No matter how much the Fundies wish it did.