Dear Walter,
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StumbleUponWell, your discussion about the religion cases couldn't have come at a better time. Because that old 9th Circuit Court of Appeals has gone and made tomorrow's decision on vouchers into fodder for page A-17. They've gone and found the Pledge of Allegiance unconstitutional. They say that forcing atheist public school kids to stand around uncomfortably while all those coercive religious hooligans recite the pledge is a violation of the Establishment Clause of the First Amendment.
Here's where you really do need to admire their chutzpah (and I use that word in its non-endorsing, secular sense): They know the Supreme Court thinks the use of the word "God" in the pledge is constitutionally permissible. They know this because members of the court have, while never having ruled squarely on this issue, said so. More than once. But the 9th Circuit dismisses that as "dicta" and drops it into a footnote.
Let me try to clarify what isn't at issue: This case isn't about students being forced to recite the pledge. The court found that to be unconstitutional in West Virginia v. Barnette (way back in 1943 before there was any mention of God in the pledge). This case simply concerns an atheist who argued (pro se, by the way) that his daughter shouldn't be forced to hear her state-paid teacher and classmates acclaim in a public school that "ours is a nation under God."
And while it seems pretty crazy, and while the high court and the 7th Circuit Court of Appeals have already said otherwise, you have to hand it to Judges Alfred Goodwin and the perennially goofy Stephen Reinhardt. They manage to make it look like they're simply following those same religion cases you just pointed out were so correctly decided: Whether you use the Lemon test, the "endorsement" test, or the "coercion" test (and how you'd even know which test to use), it certainly does look like forcing a schoolchild to endure what sounds like the worship of God is no different than forcing a child to endure a moment of silent prayer; a prayer at graduation; or a student-led prayer at a football game, each of which has already been deemed an unconstitutional "Establishment" of religion by the state.
Now you have already said today what Judge Ferdinand Fernandez says in his partial dissent: that the Constitution should neither "discriminate for, nor discriminate against religion." But this case falls smack into that line of cases about discriminating for religious speech. Which leaves us in the unfortunate position of ridiculing the decision (as I suppose we must) for its conviction that the words "under God" amount to a prayer, an endorsement, or religious proselytizing. Which they don't. As Judge Fernandez puts it, listening quietly while others mumble these two words does not promote any one religion, will not create an evil theocracy in America, and has caused no great harm in over 200 years. Still, I must wonder why Sean Hannity is practically stroking out over this decision on Fox News as we speak and why all the religious groups in the country are going apoplectic. My guess is that the words "under God" do promote monotheism, and of course the effect of that isn't just "de minimus," as they say.
The real fact is that we live in a land that likes it that way. A little mandatory Judeo-Christian theism makes most of us happy. Period. And the 9th Circuit (or if need be, the Supreme Court) will definitely make sure we get that.
Corresponding with you has been one of the great pleasures of my career.
Be well.
Dahlia
on the Fray
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Notes From the Fray Editor:
The Breakfast Table Fray has remained a shining example for all. The Table moved from discussions of the merits of Atkins to broader discussions of the nature of court representation. The Fray moved along with it. Several incisive debates about the nature of contemporary judicial federalism and Dellinger's "rule of three" have ensued. One of the best Frays ever began with Dira Necessitas's supposition that Lithwick would stop her Scalia-bashing—a harmless introduction to a fascinating juridico-psychoanalysis (or psycho-juridical analysis).
Notes From the Fray:
[Dellinger] has the good sense to understand that judicial overreaching is not a liberal or a conservative problem but an institutional one that should be resisted by everyone who has a shred of faith in democracy and, in particular, in the increasingly quaint idea that popular legislatures should make legislative decisions….
There is a longer-term insidious consequence of judicial overreaching, too, that takes the form of executives and legislatures dallying about nearly everything really controversial in the hope -- increasingly realized -- that they will be relieved of the hot potatoes by the courts, especially the SCOTUS.
-- Publius
(To reply, click here.)
I challenge [Lithwick's] shorthand characterization of that Federalism jurisprudence as "efforts at curbing congressional overreaching (often to give powers back to the states)".
That portrays some of the less controversial of the Court's Federalist opinions. But the most controversial and decidedly activist sequence of the Federalist opinions -- their so-called Eleventh Amendment jurisprudence, named for the Amendment that they now admit does not say what they earlier said it says -- has nothing to do with Congressional overreaching. The issue in the cases I was referring to in the quoted paragraphs above (including the case that the Court agreed this morning to hear) and which I believe Dellinger was referring to did not concern federal legislation whose purpose was to usurp for the federal government powers traditionally held by the states. The statutes at issue have broad applicability not just to state governments but to private entities also.
The Court's conservative narrow majority says the Constitution protects states from being subject to such legislation, this notwithstanding their recent acknowledgment that the text of the Constitution actually contains no such protection.
-- Beverly Mann
(To reply, click here.)
Let's apply Dellinger's analysis to Castillo's streak. The reason that the "Latin American record" was noted and celebrated was that it matters enormously to an important group of baseball fans - Latin Americans in their native countries. Prowess in baseball is an important signal to many in those countries that they belong (maybe more important than prowess in soccer, because the Dominican Republic et al. have great success in placing players in the best professional baseball league). That's why people in Latin American countries know which Latin American players have the most career hits, career wins, the best batting average, etc. Until they stop paying attention to the success of Latin American players compared to other Latin American players, then it's reasonable for baseball to do so, even under Dellinger's analysis.
Besides, it's good marketing.
-- randy khan
(To reply, click here.)
(7/25)