Ramblings of a Jackhole

My Take the on Pledge Case. The Dissent was Right

After reading the 9th Circuit’s Newdow v. U.S. Congress opinion, I find myself agreeing wholeheartedly with the dissenting opinion put forth by Judge Fernandez. The following is a brief summation of what he stated:

The clauses of the First Amendment require neutrality. In effect making these clauses one of the first “equal protection” provisions, which assure that the government does not discriminate against a religion or the religious. The argument that the phrase “under God” will bring about a theocracy that will repress someone�s belief to the point they’ll need to shout “Come and see the violence inherent in the system! Help! Help! I’m being repressed!” is “so miniscule to be de minimus.” Dissent in Newdow; “Holy Grail” by Monty Python. This is not arguing that there should be a “de minimus” constitutional violation. This is simply stating that the de minimus tendency of the Pledge to establish a religion or to interfere with its free exercise is no constitutional violation at all.

The Supremes have stated: “Our previous opinions have considered in dicta the motto and the pledge, characterizing them as consistent with the proposition that government may not communication an endorsement of religious belief.” County of Allegheny v. ACLU, 492 U.S. at 602-03, 109 S.Ct. at 3106 (1989).

The 7th Cir. found the clauses in the First Amendment “were not designed to drive religious expression out of public thought, they were written to avoid discrimination.” Sherman v. Cmty Consol. Sch. Dist. 21, 980 F.2d 437, 445-48 (7th Cir. 1992).

Many have been arguing that reciting the Pledge in front of others that will not recite it “makes them feel uncomfortable.” However, making someone uncomfortable is not unconstitutional. For example, when the Supremes found that Seventh Day Adventists did not have to recite the pledge, it did not say another could not recite it in front of others. See West Virginia Bd. of Edu. v. Barnette, 319 U.S. 624 (1943) (and don’t be a dumbass and get caught up in the fact that the phrase “under God” was not part of the pledge at the time this case was decided, that isn’t the point.) Their rights were protected by not allowing the government from stepping on their “sphere of intellect and spirit.” Barnette at 642 In fact the Court found that their religiously based refusal “to participate in the ceremony [would] not interfere with or deny rights of others to do so.” Barnette at 630 Therefore there is clearly not a “feel good” test that should be applied to the First Amendment.

For if this “feel good” test is utilized, then many patriotic songs will be forbidben to be played or performed in a public setting, including “God Bless America” and “America the Beautiful.” Additionally, the Star Spangled Banner will be cut short as we couldn’t dare sing the third verse. I won’t even talk about money. It is an abomination that some “do-gooders” feel the need the need to ensure everyone feels good about themselves “at the price of removing a vestige of awe we all must feel at the immenseness of the universe and our own small place within it, as well as the wonder we must feel at the good fortune of our country. That will cool the febrile nerves of a few at the cost of removing the healthy glow conferred upon many citizens when the forbidden verses, or even phrases, are uttered read or seen.” Newdow dissent at 9136.

In short we must recognize that the First Amendment was not written to avoid religious expression in public thought, but they were written to avoid discrimination.