Wednesday, March 05, 2003
If you disagree with (or know somebody who disagrees with) the Ninth Circuit's decision on the Pledge, ask yourself or your friend these questions. I think that they help to either draw you to the conclusion that the Ninth Circuit is right, or at least to clarify where you think that the Supreme Court ought to make a significant departure from existing caselaw in order to uphold the Pledge. (I am pretty much assuming that the Supreme Court will take the case on certiorari).
What is your position about the constitutionality of the following hypotheticals:
(1) A law requiring that, at the beginning of every school day, each homeroom teacher must stand before the class and say "The official position of our State is that Southern Baptist religious teachings are correct in all respects."
(2) As before, but the homeroom teacher says "The official position of our State is that Christianity is the correct religion, and all others are incorrect."
(3) As before, but the homeroom teacher says "The official position of our State is that there is one God, who created the universe and who will judge us for our actions."
I find it very hard to believe that the Supreme Court would uphold either (1), (2), or (3). And this is why I say that to uphold the official use of the Pledge, including "under God", would require that it be distinguished from (3) by averring that this aspect of the Pledge doesn't really amount to a theological statement. As I said below, I don't find that attempted distinction to be plausible; and reactions to the Ninth Circuit's decision have confirmed my belief in this regard.
What the Supreme Court will do if it does take the case, however, is a different matter; they could make distinctions that seem to me to be implausible. I doubt very much that I'll be in the Supreme Court predicting game next year, when the lineup will likely be somewhat different.
posted by sam 4:39 PM
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