In Pierce v. County of Orange, (9th Cir., March 24, 2008), the U.S. 9th Circuit Court of Appeals ruled that Orange County (CA) jails are systematically denying inmates in administrative segregation access to religious services in violation of their First Amendment rights. It held that"a detainee’s placement in administrative segregation does not, standing alone, justify a complete denial of opportunities to practice religion." The court found that a previously issued injunction requiring that inmates in administrative segregation be given once-per-week access to scheduled religious services, a chapel visit or a meeting with a religious adviser should continue to be enforced. The holding was part of a lengthy opinion in a class action lawsuit that also challenged other jail conditions. Reporting on the decision yesterday, the Orange County Register said that most of the jail inmates in administrative segregation are those charged with sex crimes.
Wednesday, March 26, 2008
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32 comments:
Isn't this the liberal court that wants to take "under God" out of the pledge?
Good for them if they recognize prisoners' religious rights.
They're recognizing the Constitution in both cases.
No, their misinterpreting the Constition in one case (i.e., pledge case) and most probably protecting an individual statutory right under RLUIPA in the second case (i.e., prisoner case). They're two completely separate issues.
The 9th Circuit is probably right about the second case, but it is certainly wrong about the first.
Marco
Sorry, I misspoke in my last post. This case wasn't decided under RLUIPA (see 2797 n.19), but decided under the First Amendment. Why they didn't utilize RLUIPA, well, boggles the mind, but anyway, I apologize for the mistake.
That being said, it appears the 9th Circuit probably got the prisoner case right, but they still got the pledge case wrong.
Marco
Marco,
That just shows your own double-standard on the issue. The last decision on the merits of the case was that the Pledge with "under God" in it is unconstitutional. The Supreme Court overturned on standing.
The implication that the decisions are inconsistent is inaccurate. It is a very consistent reading of the first Amendment to say that it states that prisoner rights to free exercise shall not be infringed, and that religion should not be supported by a governmentally-defined oath.
Hopefully, the 9th circuit will again rule against the phrase in the next few months.
OK I'm not a law student --re: "Under God" in the Pledge, (I assume) what do you mean that the Supreme Court overruled on "standing" --and that the 9th circuit will rule against the phrase in the future?
The phrase "under God" is not original to the pledge (which was written by a Baptist minister). It was added in 1954, in the middle of the Red Scare and McCarthy Witch hunt -- right before the Communist Control Act was signed into law.
Another fine example of fear run amok.
I know about the history of the phrase, Chimera --can you answer my other questions? someone?
It's a perfectly lovely, God-honoring phrase --and it doesn't establish any one religion. Sometimes it's comforting for children to believe there is a God by whose hand we are sheltered --and good for those little egos to realize there may be a power higher than themselves --who (implied) has power to hold them accountable for humane treatment of others.
And the parents who have faith in a Supreme Being appreciate having what they teach be reinforced if only a little bit by the Pledge. As for those trying to raise little atheists --why is that so important to atheist parents? What have they to gain by atheism --Heaven? No. Hope? No. Comfort? No. Freedom to be as selfish as they wish? Yes. Nobody to account to.
"...it doesn't establish any one religion."
But it established the idea of religion. It should not do that.
"Nobody to account to."
Why do you have such a problem with that concept?
As for your question, I'm not sure what it is you're looking for. Could you maybe re-state the question?
This contains my past question regarding earlier posts by CrypticLife to Marco/anonyous. To C.L., I said, "OK I'm not a law student --re: "Under God" in the Pledge, what do you mean that the Supreme Court overruled on "standing" --and that the 9th circuit will rule against the phrase in the future?"
Chimera, about accounting to someone higher than oneself --I think it is good for children to have an awareness that there may be a God to account to. And a majority of parents want them to have that sense.
I think the "idea" of God in our western American culture is nothing new --and that we do well to retain such an idea. you are certainly free to not believe. But why should the agnostic minority have the culture kowtow to them, making radical changes in the culture which favor atheists instead of the majority of theists. The "naked public square" as John Neuhouse called it, is a state establishment of atheism --rather than neutrality. It would please you and the minority of atheists--but not me and the majority of theists.
Just saw this, Barb -- the SC ruled that Newdow didn't have custody of his daughter, so didn't have the right to bring the suit. That's what it means to lack standing. They didn't decide whether "under God" was Constitutional or not, because they didn't need to go that far.
The ninth circuit did reach the issue of constitutionality, and decided it was unconstitutional, which is part of the reason I anticipate they will do so again.
Removing "under God" from the Pledge is hardly a "radical" change to our culture. The reason that the larger culture should make this change is because it's inherently bigoted. Adding "under God" in the Pledge is a statement that in order to be a real American, or real patriot, one must be a theist. Americans should believe in liberty and justice, and should believe in indivisibility -- these can be proper statements. "under God" is an improper statement. It would be as if we had "under white men" in the Pledge. The founders were white men, but no one would buy the angle that it was simply "recognizing history".
"Under God" --is far different than saying, "Under white men." I don't see the bigotry in saying, "One nation under God." It's simply saying we know that there is a higher authority than ourselves or the nation.
We were drawing a distinction between our nation and Communism, when that was added to the pledge. It has been in there since most of us were children. And it doesn't hurt anyone. You can skip those words when you say the pledge. No one is making you believe or bow your heart to a creator God by having that in the pledge.
MOreover, what if there IS a Creator God who is pleased to be acknowledged --"If we acknowledge God in all our ways, He will direct our paths."
You can't be sure He does not exist --or that He does NOT want to be acknowledged. Better safe than sorry...
Under God it is!
"...I think it is good for children to have an awareness that there may be a God to account to."
I don't think it's such a good idea. One more bogeyman to scare them with, is all. I don't want kids to grow up in fear. Fear breeds hate. Hate breeds war. And war breeds untimely death.
I'm not an atheist, by the way.
"It's simply saying we know that there is a higher authority than ourselves or the nation."
But we don't know that, do we? Some people believe that, sure. Lots of people don't believe it. But it is not, and never can be, the official stance of the government of all the people!
"Better safe than sorry..."
Fear. Of what are you so afraid?
Barb, that's a silly argument. If there were a god, you couldn't be sure he wouldn't be irritated at being connected to a particular country. What if there is a god who wants us to sacrifice baby goats? What if there is a god who wants all men to wear beards? How far will you go for this mythical "safety"?
What having "under God" in the pledge is saying is that to be a good American, you need to believe in a deity. In fact, the pledge has been used as an argument that atheists are unamerican. When you say that "It's simply saying we know that " who's the "we"? You're saying "Americans know that", but that's precisely what's at issue.
It's also demonstrable that the Christian God was the deity intended, not a nebulous "higher authority".
The God of the Bible wants the nations to acknowledge Him and obey His statutes. He wants ALL nations to do so --and isn't worried about being "connected" to a particular country. Initially he chose one family to be his nation --abraham's descendents, Israel. They were to be a light and ultimately a blessing to the dark pagan world --with their Jewish moral laws --and with their Messiah, Jesus, who said He IS the light of the world. He said we followers are to bear the light also and let it shine --and not hide it.
Chimera, "the fear of the Lord is the beginning of wisdom."
He has either revealed Himself to humankind --or not. I believe He has. And most americans used to believe that He revealed Himself through the Jews, their Book, Jesus Christ, and the Early Church writings --all inspired by the Holy Spirit of our Creator.
People are free to believe otherwise, but the majority of people will determine the laws and policies of the nation-- if the majority are atheists or liberals, religiously speaking, we get indifference and/or "selfishness for survival"--according to Chimera. We get sexually active promiscuous teens (and adults) as an acceptable standard/lifestyle. (acc'g to Chimera.) We lose the free speech rights of religious people who ought not be heard unless one wants to hear them --according to Chimera --and thus, like the Communists and Muslims, we'll be jailing the Christians for preaching in pubic --for witnessing of their faith in the presence of atheists and Muslims.
None of this sounds good or right to me!
"The God of the Bible wants the nations to acknowledge Him and obey His statutes. He wants ALL nations to do so --and isn't worried about being "connected" to a particular country"
So, your religious faith mandates that you support keeping "under God" in the pledge. In fact, including obeisance to his statutes would mean creating a theocracy.
I find it incredible that you don't see bigotry here. You are quite free to disagree with chimera on specific policies on whatever basis you please. But you should understand that none of those policies flow directly or necessarily from atheism.
I hope you don't mean hatred by "bigotry."
My faith does not mandate "under God " in the pledge. I just think it is a very good thing to do --to honor the generic "God" of our Founding Fathers. Because I believe He is really there --and really does want to be acknowledged and worshiped. I don't think that establishes one church over another church--which was the concern of the Founders.
He does want all the nations to know that He is the one God over all--that there are not separate deities of moon and sun --there are not statues with supernatural deity --He is the Creator. And our nation has historically acknowledged the god of the Bible as the one who created us and the Book. And the vast majority believed that Jesus Christ was His Son who was crucified and resurrected. And that His teachings teach the world how to live in harmony and peace. His teachings provide the standards which are foundational to our view of Civil Rights.
I just say, give honor to whom honor is due ---and that won't produce a theocracy.
As Ben Franklin put it, we owe God for our nation's existance --from the Revolutionary War and His help then. You don't have to believe that prayer was answered, thus giving us our liberty from England.
I see no harm in "under God." Let the majority have their God and let them acknowledge Him --that's not the same as establishing any religion over another --in that nearly all of them DO believe in a supreme Deity.
I'm sure this is past the statute of limitations, but I just saw crypticlife's post and will respond. No, there is no double standard in my position. By the way, I know the ultimate disposition of the Newdow case; read it many times I have.
The way I read the Constitution, you can reach my conclusions very easily. Namely, since the First Amendment is only incorporated against the state's insofar as it advances an individual liberty interest (as opposed to imposing a strutctural limitation on state governments), the first Amendment would apply in the prison case (and probably disallow exactly what the prison did) but would not apply in the pledge case since no real individual liberty interest is in play. This is the most natural and consistent reading of the Constituion, other than wholesale non-incorporation.
If you're interested in a good article on the subject, I suggest: Richard F. Duncan, Justice Thomas and Partial Incorporation of the Establishment Clause: Herein of Structural Limitations, Liberty Interests, and Taking Incorporation Seriously, 20 Regent L.Rev. 37 (2007).
Advice, ask people why they think the way they do before declaring they have double-standards.
Marco
"I don't think that establishes one church over another church--which was the concern of the Founders."
It's not the establishment of one church over another that is at issue. It is the establishment of the idea that you must have any church at all!
The various founders all had differing and personal ideas of faith. Their concern was that no one of their versions of faith were to take precedence over any other version of it -- even the absence of it.
"...there are not separate deities of moon and sun..."
Are you sure about that?
Ben Franklin was not a Christian. He loathed Christianity, dogma, and imposed morality. He decried the imposition of organized religion. He thought that each person had the right to form his own personal relationaship with the diety of his choice -- if he so chose.
He would have hated the term, "under God."
Chimera,
I don't believe your views on Franklin are correct. He was idiosyncratic, without a doubt, but he was not adverse to using Chrisitian imagery in public life. A great example of this is the national seal he and Jefferson proposed. It was a scene of Israel crossing the Red Sea and Jehovah drowning the Egyptians, complete with the caption: "Rebellion to Tyrants is Obedience to God." This seal is much more overtly Christian than simply saying "under God" in the pledge. Thus, it seems your argument is simply incorrect.
If you would like to learn more of how religion was integrated into government at the time of the Founding, I suggest the following book: James H. Hutson, Library of Congress, RELIGION AND THE FOUNDING OF THE AMERICAN REPUBLIC (Washington, D.C., 1998).
Marco
Franklin called for prayer at the Constitutional Congress --noted that God had spared us in the Revolutionary War in response to prayer in the hall where they held the constitutional congress. He said "how can we build the house without His aid?"
"...(Franklin) was not adverse to using Chrisitian imagery in public life."
Of course not. He was, first and foremost, a great communicator. And he understood very well that most people -- his target audience -- understand biblical imagery, mostly because they had been steeped in it all their lives. So he spoke to them in language that they could understand. That does not negate the fact that he was personally opposed to the implantation of religion -- any religion -- as federal policy.
chimera,
Your ultimate argument was, and I quote: "He would have hated the term, 'under God.'" Presumably, this means he would have opposed placing it in the Pledge (or maybe I'm misreading your argument). However, during his life, he did exactly the opposite of hating terms like "under God" so much that he wouldn't put them in the national pledge, and, in fact, proposed a much more Christian national seal. This seal would have implanted biblical Christianity into federal policy (the national seal being the standard federal seal) much more than "under God" in the national pledge.
Until you deal with this adequately (and you have not), your argument is very tenuous.
Marco
YOu contradicted yourself chimera.
You said he would hate the term "under God" --but then you said he was all for the use of the Christian imagery because he was a politician.
So, which way was it? He asked for a minister to open the congress with prayer every day. He said they weren't getting anywhere due to petty squabbles and disputes --and needed to petition God to get moving in their task of determining the Constitution.
And of course, they've been opening congress with prayer now for a long time --the supreme court also, as i understand it.
"You said he would hate the term "under God" --but then you said he was all for the use of the Christian imagery because he was a politician."
Will you pay attention?
I said that he understood other peoples' understanding of biblical (not necessarily "Christian") imagery. And I said he used it because he was a great communicator. As such, in order to get his thoughts across, he would have used any kind of language that was understood by his target audience.
I never referred to him as a politician. I doubt he would have referred to himself as such.
you remind me of a relative I had who would argue even after finding out she was wrong --she would spin and spin.
OK you said communicator. And that he used the language to be understood.
that doesn't explain his asking for a minister to lead them in prayer in order to get God's guidance for their decisions about the Constitution. why would the great commuicator suggest to bring in a minister to pray if he would also hate the phrase "one nation under God." He would've voted FOR such a phrase, judging by what he said at the const. congress.
You didn't know that Franklin asked for such prayer --and so you have to find a lame excuse for it --and your excuse doesn't work to make your original point --that he would still hate the phrase, "One nation under god."
Spin? Which one of us is trying to alter my words?
I have no argument with his asking a minister to lead a prayer. It would have been the polite and inclusive thing to do. Why put more emphasis on it than needs be there?
Franklin was an individualist who believed that every man had the right and obligation to choose his own path for himself. And no other man had the right to interfere. He hated Christianity and its intendant dogma. For himself. But he would never have disallowed anyone else from choosing it for himself. He had friends from all walks of life, not just the path he walked. And because he knew that a lot of people felt they needed prayer before making a decision, he would have been willing to help them with what they needed. He was, after all, trying to midwife a new country. He'd have been willing to accomodate almost anyone to get it done.
Hmmm...maybe he was a politician, after all.
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