Thursday, March 18, 2010

Newdow v. Rio Linda: The Endorsement Test

In looking at the tests that Majority applied in determining that the placement of 'under God' in the Pledge of Allegiance counts as constitutional, the next test they looked at what the endorsement test.

Under the Endorsement Test, we look to see whether the challenged governmental action has the purpose or effect of endorsing, favoring, or promoting religion, particularly if it has the effect of endorsing one religion over another.

They add:

Endorsement sends a message to non-adherents that they are outsiders, not full members of the political community."

The case is closed. A Pledge of Allegiance to ‘one Nation under God” is unconstitutional.

Any claim that the Pledge does not endorse ‘under Nation under God’ with its prerequisite belief in a God is as absurd as claiming that the Pledge does not endorse union, liberty, and justice for all.

Any claim that the Pledge does not send a message that those who do not support ‘one Nation under God’ are outsiders, not full members of the political community is as absurd as claiming that the Pledge does not condemn secession, tyranny, and injustice.

Any claim that a Pledge of Allegiance does not endorse religion and brand those who do not believe in God as outsiders and not full members of the political community is as absurd as claiming that if the Pledge were changed to be, ‘one white nation’, that this would not be an act that communicated that white citizens are superior to black citizens and that blacks are not (or ought not to be considered) full members of the political community.

No charge against ‘under God’ being a part of the Pledge of Allegiance is so obviously true or so obvious to defend.

In fact, this point is so clear and so obvious and so easy to defend that, on this point, I am completely baffled to discover that atheists are not making and defending this point. I find atheists preferring to use obscure and difficult arguments that are easy to mangle and counter about separation of church and state or the intentions of the founding fathers.

When, right here, there is the simplest and quickest of all of the possible arguments against having ‘under God’ in the Pledge of Allegiance. That it is as malicious and prejudiced against the interests of atheists as a pledge of allegiance to ‘one white nation’ would be to African Americans.

Furthermore, it is a message that is reinforced by the practice of having atheists self-select from being included in Pledge ceremonies. It would be difficult to find anything that better communicated that atheists are not full members of the political community than having them sit or stand aside while the rest of the community stands and gives a Pledge of Allegiance.

Throughout their opinion, the judges speaking in the majority concur with the fact that the Pledge is meant to endorse Union, liberty, and justice for all, and the effects that this has had on the attitudes of the political community.

On the fact that the term ‘indivisible’ appears in the Pledge they wrote:

Reinforcement of the idea that this nation is indivisible, a concept most Americans today would not even think was up for debate, reflects the fact that the Pledge was first drafted in 1892, not long after the Civil War.

If the word ‘indivisible’ is a ‘reinforcement’ – an endorsement – of an indivisible nation then it is a flat out contradiction to say that ‘under God’ is a reinforcement – an endorsement – of a religious proposition. If ‘indivisible’ aims to have the effect of creating a nation in which its citizens do not think that secession is even up for debate, then ‘under God’ aims to have the effect of creating a nation in which the citizens do not think that the existence of God is not up for debate.

The fatal flaw – the Achilles heel – of ‘under God’ is right here. This is where it fails. Yet, this is the point that the bulk of atheists and secularists choose to ignore.

If I were asked for a reason to explain why atheists and secularists avoid their easiest argument on this case, I would assert that it is because they are afraid to succeed on this issue. The aversions planted in their brain as young children – placed there by the message and condemnation inherent in the Pledge and the Motto themselves – make obscure and easy to challenge arguments against ‘under God’ far more comfortable than simple arguments that strike to the very core of this practice.

While much of what I have written in the past week against ‘under God’ applies as well to ‘In God We Trust’, here I want to make the case specific.

The Motto says ‘we’ trust in God – which necessarily implies that those who do not trust in God are not (or ought not to be considered) fully qualified members of the group known as ‘we’. Here, again, nothing can be so obvious that a motto that divides ‘we’ from ‘them’ on the issue of trust in God endorses trust in God as a positive quality and sends a message to non-adherents that they are outsiders, not full members of the political community.

Nothing could be more obvious.

4 comments:

Transplanted Lawyer said...

Alonzo, I think the expectation on the part of most nonbelievers is that this opinion will not be the final word, that the case is headed inevitably to the Supreme Court for reconsideration. Personally, I'm not sure that is what will happen -- I see votes for certiorari from Justices Stevens, Ginsburg, and Breyer but I'm not so sure I see the last and necessary fourth vote coming from any of the rest of the Nine.

And as you know from reading both the majority and the dissent in this case, the endorsement test is only one of three ways to evaluate whether something is an Establishment. Personally, I happen to like the endorsement test for its simplicity and intellectual resonance with my understanding of the Establishment Clause, and I happen to agree with the dissent that under any of the three methods of evaluating Establishment, the Pledge fails.

Justice Kennedy, one of the two possible sources for the necessary fourth vote for certiorari at the Supreme Court, has made very clear that he does not think the endorsement test is the appropriate way to evaluate questions of Establishment. Justice Sotomayor, the other possible source for that necessary fourth vote, has used the Lemon test in the few cases from her career on lower courts when confronting questions of this nature.

Alonzo Fyfe said...

Transplanted Lawyer

My crystal ball tells me that the Supreme Court will not hear this case unless the lower court declares 'under God' to be a violation of the Constitution.

They will let the lower court opinion stand otherwise.

So, I suspect that this particular attempt starts here. Which is one of the reasons that I am pushing for a possible attempt on different grounds - one comparable to the the case, 'Would an African-American have standing to object to a pledge of allegiance to 'one White nation'?

What about a candidate who was the subject of advertisements accusing him or her of atheism or associating with atheists?

Or a person holding office who was recalled for refusing to say the Pledge of Allegiance?

Or a Presidential candidate whose loyalty (and fitness for public office) was questioned by the rumor, even though false, that he does not say the Pledge of Allegiance. Clearly this tells the political implications of this type of story being true.

What about a child who was harrassed at school for not saying the Pledge saying that Pledge ritual itself generates a climate of hostility towards those who do not say it?

Transplanted Lawyer said...

Are you asking me for my opinion under existing law? If so, here's how I understand the way these things would break down:

Would an African-American have standing to object to a pledge of allegiance to 'one White nation'? Yes. This would present a substantial claim of violation of the Equal Protection Clause. (And before you ask, my initial instinct is that the real-life Pledge violates the EP Clause as to atheists. That issue was not before the Newdow IV Court, however; the subject matter of the briefing was limited to the Establishment Clause only.)

What about a candidate who was the subject of advertisements accusing him or her of atheism or associating with atheists? Likely that advertisement is protected by the First Amendment. The courts would most likely leave it to the voters to decide if they thought that was obnoxious or not.

Or a person holding office who was recalled for refusing to say the Pledge of Allegiance? A recall would probably be deemed a "political question" since most states that have recalls do not indicate what grounds are appropriate for the recall and so again, the courts would likely leave the issue to the judgment of the voters.

Or a Presidential candidate whose loyalty (and fitness for public office) was questioned by the rumor, even though false, that he does not say the Pledge of Allegiance. The courts can't compel people to not be racists in the voting booth; similarly, they won't protect against voters discriminating against atheists there, either. A more interesting question would be if the candidate traced the false rumor back to its source, and sued for defamation. Is it per se defamatory to falsely accuse someone of refusing to say the Pledge? A similar issue, in my mind, to whether it is per se defamatory to call someone gay.

What about a child who was harrassed at school for not saying the Pledge saying that Pledge ritual itself generates a climate of hostility towards those who do not say it? That child likely has a good claim for violation of either Title VI or Title VII of the Civil Rights Act, depending on whether the school is public or private -- and under whatever state-law equivalent is out there.

cl said...

I understand that many atheists are really up-in-arms about this, and in that respect I can say I feel for them, but I really don't think there's any violation of our Constitution happening. I haven't heard a valid argument for that claim yet.

Your "White nation" analogy doesn't do this scenario justice. From my understanding of history and the recent decision, I conclude that the phrase "under God" is not meant to imply that only those who believe in God are called to be Americans. Rather, it's a sentiment to express that no American's rights can be taken away.

Now, if it was "under Allah" or "under Jesus" or "Christian nation" or "religious nation" or any of those, I would be right there with you and every other atheist in agreement, but as it stands, I can't get behind the "violation" claims.

However, I do wish they would either emend or remove the phrase, so that people will quit making such a fuss over words. IMO, there are certainly more important issues the high courts could and should cater to.