Subject:
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One Nation (Under God) Indivisible, With Liberty...(was: Re: Troll Alert)
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Newsgroups:
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lugnet.off-topic.debate
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Date:
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Mon, 1 Jul 2002 03:43:44 GMT
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Viewed:
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387 times
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In lugnet.off-topic.debate, Larry Pieniazek writes:
> In lugnet.off-topic.debate, John Neal writes:
> > In lugnet.off-topic.debate, Richard Marchetti writes:
> > > Definition:
> > > troll (trol) verb
> > > To post a message in a newsgroup or other online conference in the hopes
> > > that somebody else will consider the original message so outrageous that it
> > > demands a heated reply.
> >
> > Helpful example: http://news.lugnet.com/off-topic/debate/?n=16775
>
> Funny, John, but not a very useful comment.
Hey, that's how I felt about the Troll Alert-- funny, but not very useful;-)
I suspect that in this current
> debate Richard was referring to you.
I gathered.
Your posts seem to fit his definition
> well, HIS posts on the other hand have not fit that definition at all.
>
> However I am not sure I agree with his characterization of you (if that is
> what was intended by him). While I feel you've been excessively inflexible
> in this debate and are not paying attention to what has been said, nor
> thinking through the implications of what you yourself say, nor are you
> showing evidence of being well read on what the founding fathers said or
> did, I don't see it as deliberate trolling on your part.
Thank you for recognizing that fact. Of course I'm not a troll, and while I
may not be very articulate in expressing my viewpoints, I believe I hardly that
I deserve the condescending treatment I incurred.
From the very start I wanted to talk about the notion of "God" in terms of a
cultural expression-- I was labeled a insensitive, bigotted, agenda-advancing
Christian.
My tact of trying to show that, while the FF weren't *necessarily* Christians
(or even *religious*), most did acknowledge a Creator, the author of our
inalienable rights (All the while acknowledging the necessity for the
separation of church and state).
Some then thought it fun to post anti-religion and anti-Christian sound bytes
from the FFs, to which I played the game and snipped one of my own, not to try
and prove anything except that that kind of arguing is lame at best.
> So my definition of troll is not congruent with his and you're not a troll
> in my book. You really sincerely seem to believe what you are saying and
> you're not arguing for arguments sake.
>
> Unfortunately that's cold comfort, as someone who is so wrong and so sincere
> is much more dangerous than a mere troll.
Well, now here's my problem. The ideas I express happen to be my own, not
poured into me from some liberal university (it took me a while to recover from
my liberal arts college "education"), and so they may be a little rough around
the edges. But to have some pompous and pretentious ass like RM express:
"The simple fact is that this debater clearly has no idea what s/he
is talking about, and while the rest of us have tried to set the matter
straight for this person, this person refuses to see the "light.""
As if he has the truth in his pocket to share at will! Good times!
And as if this issue is some slam dunk First Amendment case!
But this debate was about the Pledge ruling, and I am willing to continue on
in an mature manner if anyone cares.
So, I have taken the liberty of pasting Fernandez's dissent below. Rather than
snip it up, I included it in its entirety ("**" indicates my comments)
FERNANDEZ, Circuit Judge, concurring and dissenting:
I concur in parts A, B and C -1 of the majority opinion, but dissent as
to part D.
We are asked to hold that inclusion of the phrase ?under God? in this
nation?s Pledge of Allegiance violates the religion clauses of the Constitution
of the United States. We should do no such thing. We should, instead, recognize
that those clauses were not designed to drive religious expression out of
public thought; they were written to avoid discrimination.
**I wholeheartedly agree here. Atheists and ACLU take notice. Attempts to
"fervently" perge "God language" where ever it is found will be fruitless.
We can run through the litany of tests and concepts which have floated
to the surface from time to time. Were we to do so, the one that appeals most
to me, the one I think to be correct, is the concept that what the religion
clauses of the First Amendment require is neutrality; that those clauses are,
in effect, an early kind of equal protection provision and assure that
government will neither discriminate for nor discriminate against a religion or
religions. See Gentala v. City of Tucson, 244 F.3d 1065, 1083-86 (9th Cir.) (en
banc) (Fernandez, J., dissenting), cert. granted and judgment vacated by
___U.S. ___, 122 S. Ct. 340, 151 L. Ed. 2d 256 (2001); Goehring v. Brophy, 94
F.3d 1294, 1306-07 (9th Cir. 1996) (Fernandez, J., concurring). But, legal
world abstractions and ruminations aside, when all is said and done, the danger
that ?under God? in our Pledge of Allegiance will tend to bring about a
theocracy or suppress somebody?s beliefs is so minuscule as to be de minimis.
**Yes, much ado about nothing. (But be sure to check out footnote 9 at the
bottom)
The danger that phrase presents to our First Amendment freedoms is picayune at
most.
Judges, including Supreme Court Justices, have recognized the lack of
danger in that and similar expressions for decades, if not for centuries, as
have presidents-2
and members of our Congress. See, e.g., County of Allegheny v. ACLU,
492 U.S. 573, 602-03, 672-73, 109 S. Ct. 3086, 3106, 3143, 106 L. Ed. 2d 472
(1989); Wallace v. Jaffree, 472 U.S. 38, 78 n.5, 105 S. Ct. 2479, 2501 n.5, 86
L. Ed. 2d 29 (1985); Lynch v. Donnelly, 465 U.S. 668, 676, 693, 716, 104 S. Ct.
1355, 1361, 1369, 1382, 79 L. Ed. 2d 604 (1984); Abington Sch. Dist. v.
Schempp, 374 U.S. 203, 306-08, 83 S. Ct. 1560, 1615-16, 10 L. Ed. 2d 844
(1963);-3
Separation of Church & State Comm. v. City of Eugene, 93 F.3d 617, 622
(9th Cir. 1996) (O?Scannlain, J., concurring); Gaylor v. United States, 74 F.3d
214, 217-18 (10th Cir. 1996); Sherman v. Cmty Consol. Sch. Dist. 21, 980 F.2d
437, 445-48 (7th Cir. 1992); O?Hair v. Murray, 588 F.2d 1144, 1144 (5th Cir.
1978) (per curiam); Aronow v. United States, 432 F.2d 242, 243-44 (9th Cir.
1970); cf. Marsh v. Chambers, 463 U.S. 783, 795, 103 S. Ct. 3330, 3338, 77 L.
Ed. 2d 1019 (1983) (legislative prayer). I think it is worth stating a little
more about two of the cases which I have just cited. In County of Allegheny,
492 U.S. at 602-03, 109 S. Ct. at 3106, the Supreme Court had this to say: ?Our
previous opinions have considered in dicta the motto and the pledge,
characterizing them as consistent with the proposition that government may not
communicate an endorsement of religious belief.? The Seventh Circuit, reacting
in part to that statement, has wisely expressed the following thought:
Plaintiffs observe that the Court sometimes changes its tune when it
confronts a subject directly. True enough, but an inferior court had best
respect what the majority says rather than read between the lines. If the Court
proclaims that a practice is consistent with the establishment clause, we take
its assurances seriously. If the Justices are just pulling our leg, let them
say so. Sherman, 980 F.2d at 448.
Some, who rather choke on the notion of de minimis, have resorted to the
euphemism ?ceremonial deism.?
** "Ceremonial deism" Interesting concept; the same idea I was trying to
convey when I argued that the term "God" had become a cultural norm.
See, e.g., Lynch, 465 U.S. at 716, 104 S. Ct. at
1382 (Brennan, J., dissenting). But whatever it is called (I care not), it
comes to this: such phrases as ?In God We Trust,? or ?under God? have no
tendency to establish a religion in this country or to suppress anyone?s
exercise, or non-exercise, of religion, except in the fevered eye of persons
who most fervently would like to drive all tincture of religion out of the
public life of our polity. Those expressions have not caused any real harm of
that sort over the years since 1791, and are not likely to do so in the
future.-4
** Well, there you have it. This will be the opinion of the SC IMO when it
gets there.
As I see it, that is not because they are drained of meaning.-5
Rather, as I have already indicated, it is because their tendency to
establish religion (or affect its exercise) is exiguous. I recognize that some
people may not feel good about hearing the phrases recited in their presence,
but, then, others might not feel good if they are omitted.
**Bingo. Atheists may not like it, but Theists won't like it omitted--
*somebody* is going to be upset.
At any rate, the
Constitution is a practical and balanced charter for the just governance of a
free people in a vast territory. Thus, although we do feel good when we
contemplate the effects of its inspiring phrasing and majestic promises, it is
not primarily a feel-good prescription.-6
In West Virginia Board of Education v. Barnette, 319 U.S. 624, 630, 642,
63 S. Ct. 1178, 1181, 1187, 87 L. Ed. 1628 (1943), for example, the Supreme
Court did not say that the Pledge could not be recited in the presence of
Jehovah?s Witness children; it merely said that they did not have to recite
it.-7
That fully protected their constitutional rights by precluding the
government from trenching upon ?the sphere of intellect and spirit.? Id. at
642, 63 S. Ct. at 1187. As the Court pointed out, their religiously based
refusal ?to participate in the ceremony [would] not interfere with or deny
rights of others to do so.? Id. at 630, 63 S. Ct. at 1181. We should not permit
Newdow?s feel-good concept to change that balance.
** Below is the price for taking this road:
-John
My reading of the stelliscript suggests that upon Newdow?s theory of our
Constitution, accepted by my colleagues today, we will soon find ourselves
prohibited from using our album of patriotic songs in many public settings.
?God Bless America? and ?America The Beautiful? will be gone for sure, and
while use of the first and second stanzas of the Star Spangled Banner will
still be permissible, we will be precluded from straying into the third.-8
And currency beware! Judges can accept those results if they limit
themselves to elements and tests, while failing to look at the good sense and
principles that animated those tests in the first place. But they do so at the
price of removing a vestige of the 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 phrases, are uttered, read, or seen.
In short, I cannot accept the eliding of the simple phrase ?under God?
from our Pledge of Allegiance, when it is obvious that its tendency to
establish religion in this country or to interfere with the free exercise (or
non-exercise) of religion is de minimis.-9
Thus, I respectfully concur in part and dissent in part.
Footnotes:
[*] 1 - I admit, however, to serious misgivings about standing to
attack 4 U.S.C. § 4 itself. Congress has not compelled anyone to do anything.
It surely has not directed that the Pledge be recited in class; only the
California authorities have done that. Even if a general lack of standing to
directly attack 4 U.S.C. § 4 would deprive federal courts of the opportunity to
strike ?under God? from that statute, any lament would be no more than a
complaint about the limits on federal judges? constitutional power.
Nonetheless, that ultimately makes little difference to the resolution of the
First Amendment issue in this case.
[*] 2 - See, e.g., Lee v. Weisman, 505 U.S. 577, 632-35, 112 S. Ct. 2649,
2679-80, 120 L. Ed. 2d 467 (1992) (Scalia, J., dissenting).
[*] 3 - The citations to the four preceding Supreme Court opinions are to
majority opinions, concurring opinions, and dissents. Because my point is that
a number of Justices have recognized the lack of danger and because I hope to
avoid untoward complication in the setting out of the citations, I have not
designated which Justices have joined in which opinion. All in all, however,
perusing those opinions indicates that Chief Justice Burger, Chief Justice
Rehnquist, and Justices Harlan, Brennan, White, Goldberg, Marshall, Blackmun,
Powell, Stevens, O?Connor, Scalia, and Kennedy have so recognized.
[*] 4 - They have not led us down the long path to kulturkampf or worse. Those
who are somehow beset by residual doubts and fears should find comfort in the
reflection that no baleful religious effects have been generated by the
existence of similar references to a deity throughout our history. More
specifically, it is difficult to detect any signs of incipient theocracy
springing up since the Pledge was amended in 1954.
[*] 5 - See also Sherman, 980 F.2d at 448 (Manion, J., concurring).
[*] 6 - We, by the way, indicated as much in American Family Ass?n, Inc. v.
City and County of San Francisco, 277 F.3d 1114, 1125-26 (9th Cir. 2002), which
involved governmental conduct that was much more questionable than adoption of
the phrase ?under God.? See id. at 1126-28 (Noonan, J., dissenting).
[*] 7 - I recognize that the Pledge did not then contain the phrase ?under God.?
[*] 8 - Nor will we be able to stray into the fourth stanza of ?My Country ?Tis
of Thee? for that matter.
[*] 9 - Lest I be misunderstood, I must emphasize that to decide this case it
is not necessary to say, and I do not say, that there is such a thing as a de
minimis constitutional violation. What I do say is that the de minimis tendency
of the Pledge to establish a religion or to interfere with its free exercise is
no constitutional violation at all.
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Message has 1 Reply:
Message is in Reply To:
 | | Re: Troll Alert
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| (...) debate Richard was referring to you. Your posts seem to fit his definition well, HIS posts on the other hand have not fit that definition at all. However I am not sure I agree with his characterization of you (if that is what was intended by (...) (22 years ago, 30-Jun-02, to lugnet.off-topic.debate)
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