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L. Neil Smith's
THE LIBERTARIAN ENTERPRISE
Number 180, July 1, 2002
A Ridiculous Decision
Special to TLE
Possibly the most exasperating result of the 9th U.S. Circuit Court of Appeals decision Wednesday to declare the Pledge of Allegiance unconstitutional in nine Western states was the apparently irresistible temptation it dangled before politicians and other publicity seekers to storm about in public, bugling their righteousness, waving the Bible and wrapping themselves in the flag simultaneously.
(Ironically, this even included many from the political left who are refusing to let our current president fill federal court vacancies with judges of more moderate temperament.)
Yes, the issue has symbolic importance. But believe it or not, there were other matters -- more likely to have practical long-term consequences to the survival of our liberties -- dealt with in court decisions this week (see: school vouchers.)
This, meantime, was a dorky decision penned by an out-of-touch jurist, who -- apparently surprised at the response, astonishingly enough -- the next day put his ruling on indefinite hold until fellow members of the 9th U.S. Circuit Court of Appeals can decide whether to reconsider.
The lawsuit in question was brought by a California atheist who did not want his second-grade daughter to be forced to listen to the pledge - but still wanted to loot his neighbors' pockets via taxation to pay for her schooling, of course.
Judge Alfred T. Goodwin, writing the 2-1 opinion, stunned Americans across the political spectrum when he declared that reciting the Pledge of Allegiance in public schools is unconstitutional because the phrase "one nation, under God" -- inserted by Congress in 1954 -- amounts to a government endorsement of religion.
The ruling will likely be overturned by the U.S. Supreme Court, if not reversed beforehand by the 9th -- and I doubt they'll wait till Christmas.
"I would bet an awful lot on that," comments Harvard University legal scholar Laurence Tribe.
Truth be told, the principle underlying Judge Goodwin's decision is an important and valid one. Non-believers or those of other faiths should indeed be spared having their children exposed, against their wishes, to religious indoctrination of a competing faith within the government-run schools. Christians would presumably not want their children lobbied and indoctrinated there to become atheists or Zoroastrians, and the reverse is equally true.
The problem with this ruling lies not in the underlying principle, therefore, but in the interpretation. The Founding Fathers mentioned "God" and "the Creator" with some frequency -- their goal was clearly to prevent any one faith being "established" as the official religion of the state, not to bar expressions of generalized faith in a higher being or power, entirely.
Must we now remove "In God We Trust" from our currency; bar the singing at school rallies of patriotic songs like "God Bless America" or the third stanza of the national anthem; even banish the phrase "So help me God" when presidents ... and judges ... are sworn into office?
Mind you, it would be refreshing to see the courts show this same kind of zealous dedication to other constitutional provisions, for a change.
Jury trials restored in "all criminal prosecutions" as required by the Sixth Amendment -- throwing out all plea bargains along with Sandra Day O'Connor's absurd rationale that "It's OK to cheat the guy of his jury trial so long as the sentence for each count is less than six months"?
A finding that the "other rights retained by the people" under the Ninth Amendment include and have always included the right to traffic freely in cocaine, opium, and Indian hemp (as our great-grandparents were free to do before 1916), without any government interference?
And what about the Second Amendment, where the lower courts have long allowed self-righteous bureaucrats to insist that "reasonable regulation" is fine? Why can't we find that phrase anywhere in our version, which merely says the right to keep and bear arms "shall not be infringed"?
If the courts were as zealous in guarding that right as they are in protecting this purported right to be free from hearing so much as a mention of an "established religion," the correct answer for any 14-year-old girl endeavoring to buy a belt-fed machine gun over the counter for cash at Home Depot would be "No, you're not going to charge me any (start ital)sales(end ital) tax, and I don't have to show you any stinking government 'license' or 'permit,' either. Or would you like me to call the Bill of Rights Enforcement Squad ... right now?"
Schooling children at taxpayer expense in one-size-fits-all, mandatory government institutions may indeed risk turning patriotism (or, more properly, "statism") into something approaching a religion. If the courts are really concerned, let them consider whether statism and "environmentalism" as currently taught in the government schools constitute religions, and whether these doctrines aren't now so deeply ingrained that we have no choice but to sweep clean, establishing the same level of "separation of school and state" as the courts now enforce between "church and state."
Till then, dissidents and non-conformists are free to send their kids to private schools, to tutor them at home -- or to instruct them merely to remain seated and hold their peace while others "say the pledge."
All these, previously endorsed and protected by the courts, are reasonable alternatives. Judge Goodwin's ban -- on anyone saying the words "under God" while on public property -- is not.
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