Friday, October 17, 2003

Is God recognized "under Law"?


60 million students still recite the Pledge of Allegiance every school class day morning and this educationally "cultural condition" persists in spite of a 1943 Supreme Court decision (West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) ) finding that it was unconstitutional to require students to stand and recite that very same Pledge of Allegiance.

Justice Jackson wrote for the majority of the US Supreme Court:

"Struggles to coerce uniformity of sentiment in support of some end thought essential to their time and country have been waged by many good as well as by evil men. Nationalism is a relatively recent phenomenon but at other times and places the ends have been racial or territorial security, support of a dynasty or regime, and particular plans for saving souls. As first and moderate methods to attain unity have failed, those bent on its accomplishment must resort to an ever-increasing severity. As governmental pressure toward unity becomes greater, so strife becomes more bitter as to whose unity it shall be. Probably no deeper division of our people could proceed from any provocation than from finding it necessary to choose what doctrine and whose program public educational officials shall compel youth to unite in embracing. Ultimate futility of such attempts to compel coherence is the lesson of every such effort from the Roman drive to stamp out Christianity as a disturber of its pagan unity, the Inquisition, as a means to religious and dynastic unity, the Siberian exiles as a means to Russian unity, down to the fast failing efforts of our present totalitarian enemies. Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.

It seems trite but necessary to say that the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings. There is no mysticism in the American concept of the State or of the nature or origin of its authority. We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent. Authority here is to be controlled by public opinion, not public opinion by authority."

[Comment by Andis Kaulins to the above: note that Justice Robert H. Jackson wrote this in 1943. In 1945 he was the American Chief of Counsel prosecuting Nazi leaders before the International Military Tribunal in Germany. I would, without intending disrespect to anyone, call his constitutional vision the view of the "winners". I mean this sincerely. I think there is something conforming to a "victor" mentality. Victors resist domination.]

Justice Frankfurter in the minority, dissenting from the majority opinion of the Supreme Court, as follows:

"Law is concerned with external behavior and not with the inner life of man. It rests in large measure upon compulsion. Socrates lives in history partly because he gave his life for the conviction that duty of obedience to secular law does not presuppose consent to its enactment or belief in its virtue. The consent upon which free government rests is the consent that comes from sharing in the process of making and unmaking laws. The state is not shut out from a domain because the individual conscience may deny the state's claim. The individual conscience may profess what faith it chooses. It may affirm and promote that faith-in the language of the Constitution, it may 'exercise' it freely-but it cannot thereby restrict community action through political organs in matters of community concern, so long as the action is not asserted in a discriminatory way either openly or by stealth. One may have the right to practice one's religion and at the same time owe the duty of formal obedience to laws that run counter to one's beliefs. Compelling belief implies denial of opportunity to combat it and to assert dissident views. Such compulsion is one thing. Quite another matter is submission to conformity of action while denying its wisdom or virtue and with ample opportunity for seeking its change or abrogation. "

[Comment by Andis Kaulins to the above: note, paradoxically, that it is Felix Frankfurter, the Jewish Justice, in 1943, who picks the alternative course of interpretation to Jackson, a course which majority opinion writer Justice Jackson predicts to lead inexorably to an end result that always leads to "extermination" of the dissenters, which is what has happened historically to the Jews, and in Nazi Germany, almost led to their complete elimination by 1945. Hence, I would, without meaning disrespect to anyone, call Frankfurter's constitutional vision as the view of the "losers. I mean this sincerely. I think there is something conforming to a "victim" mentality. Victims invite domination.]

Daily Kos, based on a story by James Vicini in Yahoo News, reports that the Supreme Court of the United States (abbreviated by some as SCOTUS) has agreed to review the 9th Circuit Court of Appeals (California etc.) decision requiring that the words "under God" be struck from the Pledge of Allegiance , a pledge which is force-recited by children in schools. In my opinion, this is nothing but indoctrination. Children ARE impressionable and indoctrinatable - that is why the Pledge is mandated. Or do you - as adults - recite the Pledge of Allegiance every morning at your place of work? How about starting your professional day this way? - Would that be indoctrination? You bet.

From the standpoint of the RULE OF LAW, this is a tough case for law and legal theory, regardless of your religious conviction or political affiliation. It is a highly volatile, emotional subject. I personally am ambivalent about the wording of the Pledge of Allegiance, regarding it in EVERY case in its present use in the schools to be a "ritualized indoctrination" contrary to the free speech right of the 1st Amendment.

Nevertheless, and perhaps surprisingly, I think that the 9th Circuit's record of being almost always and often unanimously overruled by the US Supreme Court will continue in this case, precisely because the 9th Circuit - in my opinion - erroneously based its decision on the ratio decidendi (reasoning for the decision) that the words "under God" are "an unconstitutional government endorsement of religion". I think that holding is false.

The actual legal problem - in my opinion - is the constitutionality of any mandated or semi-required "ritualized loyalist oaths" to start the day in our schools and NOT the content of them. In school in the US, I always regarded the "Pledge of Allegiance" to be forced upon me, even though I quite agreed with the wording of the recitation. But why should ANY recitation of this kind be the rule in our schools? and if so, why not truly make them "actively voluntary"? After all, the job of the schools is to educate, not to indoctrinate. When I was in the United States Marine Corps, I taught several "high school graduated recruits" who could STILL not read and write. We have severe problems out there beyond the emotional pushing of political agendas on the educational level. The schoolteachers should stick to their jobs and leave "political education" to the political science teachers.

This question of "force" was in fact - in my opinion - the underlying basis for the recent court decision that a sculpture of the Ten Commandments had to be removed from the Alabama state judicial building. Few Americans have anything against such a sculpture, but actively and intentionally putting such a sculpture into the state judicial building forces the issue upon EVERY visitor - and that in fact is the intent of such a sculpture. What if the visitor is not a Christian? but a Hindu or Buddhist? etc. We are equally offended by our Christian presence in countries where the Law and the Church are not separated or run by other religions. In many such countries, we are judged by the rules of those other men's religions, and NOT by the rule of law - and we feel nothing but contempt and disgust for such systems. Or do you think that stoning people to death who commit adultery is anything but savagery? So we should not begin to install similarly barbaric systems in our own nation. The wise keep religion out of political and legal life.


Is "God" recognized "under Law"?

This is a tough question.

The Declaration of Independence of the United States has references to "laws of nature", "nature's God", "Creator", "Supreme Judge of the world", "Divine Providence".

The Constitution recognizes the existence of religion by requiring that we keep the Church and State separate.

Specifically, it also requires that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof". So if "religion" is recognized, does this mean that "God" is thereby also recognized?

Sworn oaths are often accompanied by placing one's hand on a holy book. The President of the United States places his hand on the Bible when taking the oath of office. In the case of sworn oaths generally, this need not be the Bible, but can be some other "holy book" or "symbolic act" (raising one's right arm, e.g.). See e.g. the New Jersey Notary Public Manual.

In the case of sworn oaths, "God" is recognized indirectly.

If we say "under God", we are of course recognizing God directly. This recognition is fairly modern in the Pledge of Allegiance, a pledge which has existed only since the year 1892 and was first adopted by Congress in 1942. The statement "under God" came into the Pledge of Allegiance in 1954. For stories about this development see Bill Broadway at the Washington Post, and Tony Mauro at USA Today.

The words "under God" are in fact relatively innocuous (i.e. harmless) as they stand in the Pledge. The phrase merely affirms the majority view of the nation - that the USA is a country "under God", i.e. consists mainly of people who believe in a Divine Being or Supreme Force, an Almighty, a "God". The words do not identify any particular religion and would thus arguably include all religions believing in an all-encompassing pervasive force as the foundation of the universe or even NO all-encompassing system - i.e. SOME system, whether positive or negative is at the root of all of mankind's views of the universe. Even an anti-God is a God, i.e. a belief system. In this sense, the use of the word "God" in the Pledge of Allegiance is not selective and does not "establish" any particular religion, contrary to some closed-minded religions terrorizing the world today, which regard people not following THEIR "god" as non-believers. Hence, the 9th Circuit's view that the Pledge itself (we are not talking here about the USE of the Pledge in schools - which is a different matter) is an "unconstitutional government endorsement of religion" can not be supported. Rather, the words "under God" correctly identify the nature of the American nation. People are still free to be atheists in this nation if they wish and no state religion has been "established", nor are their rights in any way limited by the Pledge of Allegiance per se. The use of this Pledge is a different issue: As Mauro writes:

"Neither Congress nor President Dwight Eisenhower, who signed the bill, made any bones about the religious intent of the added words. 'From this day forward," Eisenhower said, "the millions of our schoolchildren will daily proclaim ... the dedication of our nation and our people to the almighty.'"

As admirable as this formalized patriotism may be, it is surely not democratic to force millions of schoolchildren to do a morning political chant. In fact, one originally gave the Pledge of Allegiance with an arm signal very similar to that used in Nazi Germany. During WWII, the similarity of signals was too close - and the practice was changed. Time has changed even moreso since then. What good old Ike did then, is no longer modern. The Pledge of Allegiance can stand as is - it should just not be force fed at the schools.

Of course, millions of Americans have nothing against the actual wording of the Pledge of Allegiance, nor do I. But that is not the LEGAL issue. On a scale of sensible priorities, the RULE OF LAW still ranks far above the rather unimportant desirability of words in a ritualized speech. So, when we make decisions on matters of substance of this nature - we should decide - always - for the higher good and not for the lower, if also excellent, lesser good.

Indeed, we should reject with understanding but firm resolve such laws submitted to Congress which - for the sake of trifles in this case - are, by their effect, actually trying to subvert and undermine the entire time-tested federal system of "checks and balances" in America by working to eliminate judicial review of laws and by seeking to defederalize the established federal system to give state governments (and thus the local "good old boys") more power and control over their citizens, which always leads to more tyranny than democracy. Such attempts are far more injurious to the country in the long run than any question of the words "under God" in the Pledge of Allegiance. What would America be like if every State ran its show the way only THEY wanted? God forbid! - you see, the use of God can go both ways. e.g. Marriages and/or Divorces recognized in one state would - logically - not be recognized in another, etc. It would be chaos. United - we stand, divided - we fall - and we would fall hard.


Let us look at this matter from the "other" end of the spectrum,

TBP, Esq. at

unbillable hours cites to

Say What?! - A weblog of classic humor from U.S. District Judge Jerry Buchmeyer and the item concerning "Jurisdiction: Serving Satan [in] Mayo v. Satan & His Staff". Does the Devil have judicial standing? Well, er, no....

I think that judicial holdings acknowledging neither the LEGAL existence of Satan nor the LEGAL existence of God - make it quite clear that God does not exist "as a matter of law". The wonderful example in footnote 3 of the above article - should give cause for zealously religious people of any denomination to ponder the question of why many intelligent people think it is sensible to separate Church and State, and similarly, Church and Law. The phrase "under God" does not acknowledge that God actually exists, it merely records the fact that the USA is a nation which believes in God. That is a different matter.

When Church and State or Church and Law are actually mixed, especially as to the "laws in force", then trouble invariably appears, because then everyone calls on the Almighty to justify his or her particular wishes and/or even dastardly deeds and actions. This of course leads not to a God's peace, but to a Devil's war. We have such a war ongoing at present worldwide with people trying to install a God's government which looks much like a Devil's work.

Footnote 3 above gives one example of a criminal praying to his Maker to let him get away with a crime "just once". Indeed, we see some spiritual leaders recently in the news doing just that (the priest sexual abuse cases, religious fundamentalism, etc.). What many people call "God's will" is just their own personal preconception of what THEY want. It may have nothing to do with what God wants.

The religious fanatics active on our Globe today are a typical, disastrous example of mankind misusing religion for despicable, inhuman ends and and foolishly equating their imagined temporal State with the realm of a religious God.


So, do God and the Devil exist as a matter of LAW?

The answer can only be "no".

God is not a person. God is not born and does not pass away. God does not live "anywhere" and has no "known address". God pays no taxes. God can not sue or be sued. God can not be served a summons. God can not be called upon to serve as a witness in a court of law. God can not be made to intervene in an action. God can not be made the subject of laws which he has to obey or not obey. Law exists "under God", yes, but not vice versa.

The Justices of the Supreme Court, though we may not agree with them all politically, are not idiots, and there is wisdom among them.

Will they throw God out of our country? contrary to almost unanimous opinion?

The answer is no.

Will they toss the Pledge of Allegiance out of the schools, contrary to the wishes of 90 percent of the population?

The answer is no.

How will they then decide legally to achieve those objectives?

The conclusion can only be:

1. The phrase "under God" in the Pledge of Allegiance will be found

NOT to establish a religion and thus NOT to contravene the Constitution of the United States.

The 9th Circuit will be unanimously overturned AGAIN.

2. The Pledge of Allegiance will be found absolutely permissible in the schools as long as it is NOT mandatory to be recited by any student who does not wish to do so, which would otherwise be contrary to the 1st amendment.

Or to put it in the words of Carl Sandberg - I paraphrase - the windows and doors are either open or shut, and everything remains the same as it always was.

Paul, Weiss, Rifkind, Wharton & Garrison

This article was first posted to DVDPundit on October 7, 2003. I re-post it here to give a bit of background about yours truly, the LawPundit blogger and the law firm with which he was affiliated.

Paul, Weiss, Rifkind, Wharton & Garrison [known in the trade as Paul Weiss], the international New York City based law firm which I joined as an associate after graduating from Stanford Law School in 1971, had, and still has, inter alia, a strong practice mixture of corporate, information technology and entertainment law. See the Vault and Excite for a profile of the firm.

Some years after I left the firm, Paul Weiss played an important advisory legal role in the development of the DVD standard (Digital Versatile Disc) which we use today.

This was not the only activity of the law firm in the newly developing field of digital information technology.

Indeed, Paul Weiss represented the National Music Publishers Association [a client for whom I did quite a bit of work as associate in my years with the firm] and it was the NMPA with whom Napster settled in the famous Napster copyright infringement action several years ago. Paul Weiss and the NMPA are still very much in the news currently.

Similarly, in a recent peer-to-peer file sharing copyright infringement case, Paul Weiss represents the Motion Picture Association of America (MPAA) in a suit involving Grokster and Kazaa.

Paul Weiss has also represented the EMI Group and EMI Music.

Moreover, Paul Weiss has a long-standing relationship to AOL Time Warner, the largest communications company in the world, formed through decades in part by the efforts of Paul Weiss lawyers, such as Peter Haje, who became Executive Vice President and General Counsel of Time Warner and thereafter Counsellor to AOL Time Warner.

Essentially, the law firm helped to make the music, movie and entertainment industry what it is today.

Politically, Paul Weiss has always been known to be among the most "liberal" of all the so-called major US law firms. The ranks of Paul Weiss law firm partners included Adlai Ewing Stevenson, Lloyd Kirkham Garrison, Ramsey Clark, Morris B. Abram, Arthur Goldberg, Edward N. Costikyan, Theodore Sorensen (today, of counsel to the firm), and Judge Simon H. Rifkind, lawyer inter alia to Jacqueline Kennedy Onassis and Charles H. Revson of Revlon, and the last "patriarch" of the firm. It is consequently a remarkable situation that the firm Paul Weiss now is seen as representing the copyright-protected "establishment" recording industry. How did this paradox situation come to be?

To get an answer to this question, we must look at a "Paul Weiss centered" history of the entertainment business, broadly defined, in the past 100 years.

The beginnings of the firm were tied to Paul Weiss clients who developed television in its infancy. Additionally, founder John Wharton was the lawyer and executor for songwriter Cole Porter, who wrote the music for Al Jolson in The Jazz Singer, the first "talking" motion picture. The connection to cinema thus came early and subsequent exercisable expertise in a profession is of course largely a question of experience. So the firm got in on the ground floor of the entertainment business many years ago.

Logically, Paul Weiss then became attorneys for famous artists and fashion designers such as Andy Warhol and Calvin Klein, while other partners of the firm such as Robert H Montgomery served as counsel to movie stars like Marilyn Monroe.

The emphasis on new technology, glamour, entertainment and politics thus has a long law firm tradition at Paul Weiss. This flair was also combined with a foresight toward coming societal developments.

For example, Paul Weiss was the first major law firm in New York City to move out of crowded Wall Street into Midtown Manhattan, signalling a move followed by many other major New York City law firms.

Paul Weiss was also the first major law firm to hire a black lawyer - William Coleman, Jr. - who finished first in his class at Harvard Law School in 1946 and who commuted to Paul Weiss in New York City from Philadelphia, his home town, because no major law firm in Philadelphia would hire him. For the full story see William Coleman, Jr.

All commentators have pointed out that Paul Weiss is "different" than all other big law firms, but defining that difference has not been easy. Perhaps the core of the difference was reflected in Judge Rifkind's repeated policy statement "that a law firm is a profession and not a business organization," quoted by Michael Orey, in Paul, Weiss: Profits and Principle, The American Lawyer, June, 1987. I certainly agreed in my younger days.

In any case, it is no suprise that Paul Weiss was actively involved in developing the DVD standard - this involvement was the continuation of a tradition that has been going on at Paul, Weiss for many decades. It is not by chance that Paul Weiss represents the music and entertainment industry TODAY - it helped to make that industry what it is YESTERDAY. But of course, times change and industries change, and we are in a period of digital transformation.

Hence, the scope of coverage of DVDPundit reaches beyond simple news and reviews of music, movies, information or software found on Digital Versatile Discs (DVDs). DVDPundit's ambit also spans the legal and political IT world, including copyright and piracy issues, hardware and software standards, and the entire world of DVD.

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