Non-Atheist loses Pledge challenge

[D. Scarlatti]

Myers belongs to the Anabaptist Mennonite faith, which condemns the mixture of church and state. Anabaptist Mennonites are a Christian sect that "left Central Europe in late 1600 because of religious persecution for belief in the separation of church and state."

According to the Mennonite Confession of Faith, "[t]he primary allegiance of all Christians is to Christ’s kingdom, not the state or society. Because their citizenship is in heaven, Christians are called to resist the idolatrous temptation to give to the state the devotion that is owed to God."

Myers lost, in a ruling issued today by the 4th Circuit Court of Appeal, consisting of three separate opinions (one for the court and two concurring):

Myers v. Loudon County Public Schools

It's a 25-page opinion but the actual Establishment Clause analysis doesn't begin to be addressed until page 11. After the now-mandatory, selective discussion of the history of public religion in the U.S. à la faux-historian William Rehnquist, the court determines finally, on page 21, that despite "undoubtedly ... contain[ing] a religious phrase," the Pledge is a patriotic exercise and not a religious one.

Pretty flimsy stuff, from the looks of it, at least in terms of controlling precedent from which to draw. The 4th Circuit even acknowledges this:

Although we are not bound by dicta or separate opinions of the Supreme Court, "observations by the Court, interpreting the First Amendment and clarifying the application of its Establishment Clause jurisprudence, constitute the sort of dicta that has considerable persuasive value in the inferior courts." ... Moreover, in the context of this case it is perhaps more noteworthy that, given the vast number of Establishment Clause cases to come before the Court, not one Justice has ever suggested that the Pledge is unconstitutional. In an area of law sometimes marked by befuddlement and lack of agreement, such unanimity is striking.

That's the 4th Circuit's emphasis.

Not exactly the finest example of compelling legal reasoning one might expect from this level of court.

[Ari]

So... I'm confused...

If an obviously religious statement becomes "patriotic" and not religious if it's inserted into a patriotic activity, does that mean that if catholic Sacrament became infused into how one says the pledge, it would become a "patriotic" activity and not a religious one?

In a theocracy it could be said that most religious activity is really patriotic activity.

[D. Scarlatti]

Excellent question - and a disturbing conclusion.

[D. Scarlatti]

An excerpt from SCOTUSblog's highly derisive commentary on the 4th Circuit's opinions:

It is impossible to get into the real motivations of the Fourth Circuit judges in writing their opinions in this case. But they no doubt were aware of the firestorm of criticism that arose after the Ninth Circuit had ruled the Pledge, as written, invalid when recited by public school students (a decision set aside by the Supreme Court's Newdow ruling). It would hardly be surprising if there was some hesitancy to kindle those still-hot embers. The federal courts now know, even more than they could see at the time of the reaction to the Ninth Circuit, how much trouble their substantive decisions on deeply controversial social issues can cause in Congress, the White House, and American politics.

[Stephen Maturin]

From the quoted opinion:

Moreover, in the context of this case it is perhaps more noteworthy that, given the vast number of Establishment Clause cases to come before the Court, not one Justice has ever suggested that the Pledge is unconstitutional.

Horseshit. Clarence Thomas, in his dissenting opinion in last year's Newdow case, stated clearly and unequivocally that public school Pledge recitation exercises are unconstitutional under existing precedent, particularly Lee v. Weisman. Thomas's problem is with existing precedent, not with the idea that existing precedent invalidates the Pledge.

[D. Scarlatti]

Heh. Right you are, stranger:

I conclude that, as a matter of our precedent, the Pledge policy is unconstitutional. I believe, however, that Lee was wrongly decided. Elk Grove Unified Sch. Dist. v. Newdow, 124 S. Ct. 2301, 2329 (2004) (Thomas, J., concurring).

[Ari]

So, not only do they possibly pander to politicians, but they don't even know recent pledge history.
They are looking more and more qualified everyday.