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Location: Montgomery Area, Alabama, United States

Former BUFF driver; self-styled military historian; paid (a lot) to write about beating plowshares into swords; NOT Foamy the Squirrel, contrary to all appearances. Wesleyan Jihadi Name: Sibling Railgun of Reasoned Discourse

Thursday, September 22, 2005

Pledge No Mo' Part 2, or, "The Law Is A Bachelor"

Looks a lot like John Roberts, no?

Chefjef expounds at length upon my post concerning the Federal Ninth Circuit Court of Appeals, hostage to the gay, Christer-hating whims of the People's Democratic Republic of Gerbilstan's close-quarters pressure, and its decision to declare the US Pledge of Allegiance the most heinously illegal and immoral thing since someone proposed that unborn children might have a right to live. I think I have assembled his messages in the correct order. I meant to post this a week ago, but it's taken me this long to assemble the pieces (I never was very good with jigsaws):

C’mon Monkster! What nonsense. Perhaps the fact that the plaintiff in the case is an atheist who is using the courts to further his own personal anti-religious agenda, and shamelessly using his daughter (who is, apparently, a Christian) annoys you such that you posted this witty, yet incorrect, report.

First of all, the decision did not declare the Pledge unconstitutional. That is patently incorrect. Secondly, given current law, the Ninth Circuit’s decision was spot-on correct. Thirdly, the case must be considered in its entirety – specifically, three separate adjudications spanning several years. The remainder of my post includes such consideration.

The Pledge, in its current form, is codified into law via the federal statute cited in the opinion. The plaintiff asked the Ninth to hold it unconstitutional. They did NOT. The Court said the pledge itself was just fine. What the Court held was that the combination of the California statute requiring a patriotic exercise in schools and the school district’s requiring teachers to lead students in a recitation of the Pledge in conformity therewith is a violation of standing constitutional law. (BTW, I find your characterization of California – with the pseudo-liberal-pinko-commie lingo and all – interesting given the fact that the state mandates patriotic activity among school kids and recommends recitation of the Pledge as a way to so do; Alabama doesn’t).

Further, the Court rejected the plaintiff’s request to hold the recitation of the Pledge at school board meetings and other administrative functions where parents and school employees participate. The Ninth Circuit specifically said that at functions such as school board meetings, PTA meetings, etc., there is no governmental compulsion and if the convening party(s) wish to open with the Pledge, they may do so and anyone who objects can refuse to participate.

Even further, the plaintiffs, in their atheist zeal, failed to actually ask the Court to stop the school district from compulsorily administering the Pledge in the classroom. The plaintiff’s asked the Court to hold “under God” unconstitutional, the entire Pledge with “under God” in it unconstitutional, and to order the Congress to repeal the statute creating the official Pledge and also to order California to repeal it’s statute recommended recitation of the Pledge AND to order California Schools to cease and desist use of the current Pledge. The Ninth Circuit not only REFUSED to order any of those things, the Court specifically told the plaintiffs that given their legal ruling, the only remedy available to the plaintiff’s was to issue an injunction against the schools that their children attend, and that the injunction would be narrowly limited to preventing teachers (or similar school officials) from leading a recitation of the Pledge during school time.

Moreover, since the plaintiffs did not ask for such an injunction, the Ninth Circuit didn’t give them one (of course, the Court said if they file the appropriate paperwork, the injunctions would be granted).

The bottom line no matter what your position is on use of the Pledge in school, two things are true in this case: 1) the Ninth Circuit did not hold the Pledge unconstitutional (which, by legal presumption means they held it as constitutional) AND concomitantly recognized that the pledge may be recited in schools and at school functions under several circumstances; and 2) the Ninth’s ruling was based on a legal test developed by the Supreme Court (by the conservatives on the Court, by the way) which the Supremes, in that case, REQUIRE circuit courts to apply to the type of cases that this was. Where’s the activism? Also, their ruling only applies to public schools.

It is also important to note that in the second phase of the litigation (prior to this decision), the Ninth Circuit gave the school districts a 90-day stay (i.e. they put the litigation on hold without ordering the defendants to temporarily stop leading recitations of the Pledge) to allow them to go directly to the Supreme Court and ask them for a ruling on the constitutionality of the statutes in question. The Supremes refused to hear the case.

You know, much of the Ninth Circuit’s reputation is a result of intentional mischaracterization by right-leaning ideologues.

RLIs? Really? Do ideologues "lean?" Leaning implies inclining in one direction or another. As a card-carrying Right-Wing Ideologue (RWG, pron. 'raw-wig') and a charter member of the Vast Right-Wing Conspiracy (VRWC, pron. 'var-wick') (not to mention a contributing member of the North American Useless and Unnecessary Acronym Society (NAUUAS, 'gnaw-ass')), I maintain that us RWGs STAND on the right – we don't "lean" like some limp, purse-carrying, exhausted-by-his-subway-ride Metrosexual Bluestater. And besides, intentional mischaracterization is our business. Karl Rove, aboard the Republinazi Borg-cube, issues our instructions via Glen Beck's radio show. Look here if you don't believe me.

Must……….obey! Must……………….not…………………………….resist…………….!

The Ninth Circuit acted fairly, properly, and within the framework of the established precedent that they were required to follow. A reasonable person could certainly come to a different legal conclusion in applying those precedents to the facts of the current case – although it would be somewhat tenuous – but to label their actions as activist, or from another planet, or outside the proper parameters of proper federal appellate operations is simply wrong.

BTW, the basic premise of the Court’s opinion, which resulted from it’s application of the legal test established by the Supreme Court, is contained in its 2003 opinion in the second phase of the litigation. They said:

A profession that we are a nation “under God” is identical, for Establishment Clause purposes, to a profession that we are a nation “under Jesus,” a nation “under Vishnu,” a nation “under Zeus,” or a nation “under no god,” because none of these professions can be neutral with respect to religion; and that the government must pursue a course of complete neutrality toward religion which it violates with a message of state endorsement of a religious belief when it requires public school teachers to recite, and lead the recitation of the current form of the pledge. A student who objects is confronted with an unacceptable choice between participating or protesting.

Philosophically interesting, because the statement acknowledges "under no god" is itself a religious statement. I grant that one can be logically drawn to the conclusion that neutrality might require no mention of God whatsoever. That's the position the court is taking. However, it does align perfectly with the atheist plaintiff's agenda. I don't necessarily draw any conclusions from that, but I do think it is……..interesting.

It also has (overall) one of the highest crime rates in the nation. Thus, as a result you would expect o see more civil and criminal litigation, and given the population, more unique legal issues deserving of Supreme Court attention.

On the contrary, the 11th circuit covers only Florida, Georgia and Alabama. So even though it is the 3rd most populous circuit (there are only 11 circuits), the actual population, and range of cultural and commercial diversity, compared to the 9th is significantly less. When you take all of this into account -- the range of industry in the high crime rate, the variety of cultures (and the conflict arising therein), even some of the odd issues that arise with the Marianas Islands) - and the population difference - of course you are going to see far more civil conflicts and criminal law issues arising out of the 9th than the 11th, and concomitantly you would expect to see more types of cases in 9th circuit litigation that deserve Supreme Court attention, regardless of how the 9th circuit ruled on the case, which brings me to the most important statistic:

In 2002, half of the other circuits were overturned more than the 9th. In fact, the 9th was overturned 75% of the time in 2002, while the 4th, 5th, 8th and 10th (with the 4th and 5th being the most conservative courts in the country) were overturned 100% of the time.

Not that my post wasn't long enough, but as I was thinking about some of the sensationalist headlines that followed this case (even in liberal rags like the San Francisco Chronicle), I found it interesting that the headlines stated that the Court held the pledge unconstitutional, then the text of the articles was stated that Court held that recitation of the Pledge was unconstitutional. Of course, first of all there is a huge difference between saying the Pledge is unconstitutional and reciting it is unconstitutional. And, as my post already articulates, court said neither such thing.

Sorry, just one more note to emphasize my statement that people purposefully misrepresent the Ninth Circuit's rulings and records. Activist on the right claim that the 9th is the most overturned appellate court. This is not entirely true.

First, it is important to note that every federal circuit court has a high rate of "overturnedness", because the Supremes (generally) only take cases that they intend to overturn, or in which there is a circuit split (different circuits are coming up with contrary rules on the same legal question) or on novel questions of law.

But, since I just posted on the Newdow case, let's take the year the 9th first gave a ruling on that case: 2002. After that ruling, while pundits were incorrectly saying that the 9th held the Pledge unconstitutional, they were also pointing out that that the 9th was the most overturned federal circuit court. Untrue.

Conservative groups justify this statement by quoting statistics such as:

"Notably, the 9th Circuit accounted for both 30 percent of the cases (24 of 80) and 30 percent of the reversals (18 of 59) the Supreme Court decided by full written opinions this term. In addition, the 9th Circuit was responsible for more than a third (35%, or 8 of 23) of the High Court’s unanimous reversals that were issued by published opinions. Thus, on the whole, the 9th Circuit’s rulings accounted for more reversals this past term than all the state courts across the country combined and represented nearly half of the overturned judgments (45%) of the federal appellate courts....Although the 9th Circuit’s caseload comprised approximately 17% of the federal appellate cases terminated in the year ending March 31, 2002, its decisions accounted for close to half (43%) of all the federal appellate decisions reviewed by the Supreme Court this past term. Comparatively, the 5th Circuit decided nearly 14% of federal appeals cases, but accounted for only 5.4% of the Supreme Court’s docket. The third largest federal appeals court, the 11th Circuit, accounted for nearly 13% of federal appellate caseload, but only 7.1% of the cases decided by the Supreme Court originated there.

This means that, on average, a case from the U.S. Court of Appeals for the 9th Circuit was more than twice as likely to be reviewed and produce a written decision by the U.S. Supreme Court than was a case from the other federal appeals courts. By contrast, a case from the second busiest circuit, the 5th, was nearly a third less likely to be reviewed and decided by the High Court than the average federal appellate case."

What's the source here, Counselor? Footnotes, please!

Two problems here: First, while the writing mentions the area covered by the 9th, it fails to mention that it comprises almost a quarter of the country's population, and, more importantly, more culturally and commercially diverse states (the 9th covers California, Oregon, Washington, Arizona, Montana, Idaho, Nevada, Alaska, Hawaii, Guam and the Northern Mariana Islands)


Sheeeze! I just thought the picture was funny and wanted to run some amusing text to go with it! Guess I should have picked a New Orleans theme (the pic was from there), but I thought that would be kinda mean, considering….

I have no doubt you're right and that the problem has been overblown by the media (imagine that!). I cannot pretend to debate the intricacies of legally differentiating between thinking about the Pledge and saying it out loud in public (which seems to be the distinction that the 9-C drew). I'll leave such things to subtler minds like yours. The law may be perfectly correct and have been perfectly upheld in this case. Dunno.

But I still think Dickens' Mr. Bumble said it best: "If the law supposes that,…the law is a ass, a idiot. If that's the eye of the law, the law is a bachelor, and the worst I wish the law is that his eye may be opened by experience—by experience!"


PS: Next time, Chefjef, please NUMBER your responses!

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