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Front Page » July 16, 2002 » Opinion » Precedent tests judged the Pledge
Published 4,451 days ago

Precedent tests judged the Pledge


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By RICHARD SHAW
Staff reporter

It's hard for people to understand the reason a court would strike down as simple a clause as "under God" from a tradition such as the Pledge of Allegiance. Obviously, most of the American public is furious over what the Ninth Circuit Court of Appeals in San Francisco did, and there have been calls for an investigation into the judges who voted for the opinion, charges of "substantial liberalism" and those who want to impeach the judges involved.

But the decision did not surprise me, based on past decisions courts in the land have made about the separation of church and state. And that is the key, because precedent is what makes cases work or not work. Each day there are courts in the land that break new ground in law, but when the precedents are set, it is difficult to undermine them.

In this case the precedents were set by the Supreme Court itself. While the average person sees this only as a liberal court decision, it is in fact largely based on some "tests" the Supreme Court has determined decide the constitutionality of a subject.

The court had to judge whether Michael Newdow had standing to file a suit under the Establishment Clause. The Establishment Clause, is the first amendment to the constitution which states "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

To some people this clause means that congress cannot pass laws that keep people from exercising their religion or it's practices anytime they want no matter where they are. To others it means that the state cannot aid a religion or religions of any kind in any way. And of course there are "in-betweeners" that believe in various other opinions that stand between those diametically opposed viewpoints.

Obviously, since there was a decision in the case, it was established that Newdow had standing to challenge the 1954 change in the Pledge, or the decision would not have turned out as it did.

Next came the famous "Lemon Test" that was established by the Supreme Court in 1971 in the case of Lemon vs Kurtzman. In that case the Supreme Court ruled that states could not give state aide for teachers salaries in parochial schools unless that aid could meet three criteria. Those three criteria have since become the major "litmus" test for many court decisions concerning church vs state issues.

The "Lemon Test" is much like a three pronged fork; each parameter must be met for a question to be constitutional. If a question does not meet even one of the questions, it fails constitutionality. Those prongs are:

•Does it have a secular or religious purpose?

•Does the primary effect of the governments action endorse or advance any particular religion or even religion in general?

•Does the governments practice foster an excessive entanglement between government and religion?

The next test used was the "Coercion Test." It is based on the 1992 case of Lee vs Weisman to see if a practice, that may be religious in nature, is used to exert pressure or force on individuals to participate. The Supreme Court has ruled that "Unconstitutional coercion occurs when the government directs a formal religious exercise in such a way as to oblige the participation of objectors."

The final test, and another one this court used in this decision was the "Endorsement Test." This test came from a 1989 case, Alleghany County vs the ACLU. This test evaluates if the practice unconstitutionally endorses religion by conveying "a message that religion is favored, preferred or promoted over other beliefs.

The majority opinion of the court stated that "We are free to apply any or all of these three tests and to invalidate any measure that fails any one of them."

That is the crux of the matter. The majority of judges (two of three) determined that "under God" did not pass these tests. On the other hand, the dissenting judge felt the effect of "under God" in the pledge had a minimal effect on a young girl who was only hearing the words and not reciting them.

The idea that a court is "right" or "wrong" is often determined by the emotions and the feelings of the public. But those feelings have little to do with actual constitutional law. Those public pressures are one of the reasons courts and judges were made basically bullet proof from removal by the founders of our country. The legislative and administrative branches of government were set up to be influenced by public opinion, while the courts were put in place to be somewhat immune.

Few courts want to rule and then be over turned by a higher court. They want to have good law from the bottom up. This is a case where the court followed what they determined was the precedent. Each and every citizen should look at the tests the court used and determine for himself or herself, based on those precedents, how they would have voted in the case. Then and only then can we really understand the decision that was made. Whether one chooses it is constitutional or unconstitutional, it then becomes an informed opinion rather than just an emotional one.


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July 16, 2002
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