Lawsuit Over Pledge Raises Interesting Questions

Via the DMN, there is some interesting debate over the pledge to the Texas flag in an ongoing lawsuit:

Mr. Cook argued that the U.S. pledge has been allowed to stand mostly because it is a tradition and has been in place for decades. The Texas language is different because it is new, he said.

Mr. Cruz said this argument of “old may be OK, but new is bad” does not work because the language is identical and has never harmed children who said the U.S. pledge.

Cook’s argument, however, has some merit. Especially when you consider that the bill analysis for HB 1034 actually specified in writing that the purpose of the addition was not patriotic but rather to “acknowledge “our Judeo-Christian heritage.” From the floor debate between Rep. Lon Burnam (D-Fort Worth) and Debbie Riddle (R-Tomball), the bill’s author:

REPRESENTATIVE BURNAM: You know it’s a bill that doesn’t have very many words in it, Ms. Riddle.

REPRESENTATIVE RIDDLE: I’m sorry, I couldn’t hear you.
BURNAM: It is a bill that doesn’t have many words in it.

RIDDLE: It has three words.

BURNAM: But it is as fundamental as when the pilgrims stepped on the rock at the founding of this nation and I have a lot of questions that I need answered. Do you know that in the bill analysis it’s stated that your bill will acknowledge “our Judeo-Christian heritage”?

RIDDLE:Yes, sir.

BURNAM: I’m sorry?

RIDDLE:Yes.

During the Burnam/Riddle exchange, Burnam also asked Riddle about the doctrine of stare decisis. Given all of the uproar in the Legislature at the time, it didn’t register with me how important that was or why he was asking. Here’s some clips from that exchange:

BURNAM: Are you aware of the term stare decisis?
RIDDLE: I’m sorry.

BURNAM: Let me spell it. It s-t-a-r-e…

RIDDLE: I’m sorry, it’s echoing in here.Was I aware of what?

BURNAM: It’s the term.Were you aware of the term s-t-a-r-e d-e-c-i-s-i-s?

RIDDLE: No.

BURNAM: Alright, I’ll admit, the heckler in the background is pointing out that none of you are lawyers and I’m not a lawyer, so I can’t pronounce it well, and you don’t know what it is, so I’ll tell you. It means that the Supreme Court does not overturn precedent lightly, Ms. Riddle. Do you know, Ms. Riddle, that the Supreme Court disagrees with both our governor and with you.
RIDDLE: Are you trying to say precedence?

BURNAM: No, would you like for me to spell the word again?

RIDDLE: I was just trying to decipher what you were saying. I’m sorry.

BURNAM: Let’s just move on. Do you know, Ms. Riddle, that the Supreme Court disagrees with our governor and with you. Freedom of religion does not mean freedom from religion. That’s what you said and that’s what our governor has said.

Is that correct? Would you like for me to repeat the question? Do you know Ms. Riddle, that the Supreme Court disagrees with our governor and with you. The Supreme Court says freedom of religion does mean freedom from religion?

RIDDLE: That is your opinion, sir.

BURNAM: Justice Stevens writing for the majority in Wallace vs. Jaffree wrote, “the individual’s freedom to choose his own creed is the counterpart of his right to refrain from accepting the creed established by the majority,” the majority you referred to earlier. Moreover, the individual freedom of conscience protected by the First Amendment embraces the right to select any religious faith or none at all. Were you aware of that?
RIDDLE: Sir, I believe that you are extremely articulate, you’re extraordinarily bright, and well-respected.

BURNAM: That’s just one example.

RIDDLE: You’re giving a great deal of information, but what I am telling you is every day, when we stand here on the floor of the house, we do say our national pledge.We continue to say “one nation under God” and this bill is simply to mirror or reflect “one state under God.”

BURNAM: Ms. Riddle, are you aware that simultaneous decisions by the Supreme Court allowed us to keep the ten commandments on the capitol lawn, but forced a Kentucky courthouse to remove the ten commandments?

RIDDLE: Do you see the inscription above me here, sir?

BURNAM: Ms. Riddle, could you answer my questions? I’m at the back mic.

RIDDLE: And what is your question?

BURNAM: The question is are you aware that simultaneous decisions by the Supreme Court allowed us to keep the ten commandments on the capitol lawn, but forced a Kentucky courthouse to remove the ten commandments?

RIDDLE: This is not about the ten commandments, sir. This is about the pledge.

BURNAM: Are you aware that Justice Breyer writing for the majority in the Kentucky case wrote the following, “When the government acts with the ostensible and predominant purpose of advancing religion, it violates the simple establishment clause value of official religious neutrality, a purpose to favor one faith over another, or adherence to religion generally, clashes with the understanding that liberty and social stability demand a tolerance that respects the religious views of all citizens.”
[emphasis added]

On stare decisis now:

Stare decisis is the policy of the court to stand by precedent; the term is but an abbreviation of stare decisis et non quieta movere — “to stand by and adhere to decisions and not disturb what is settled.”

When this case gets to the U.S. Supreme Court (provided the right-wingers up there maintain some semblance of justice), it’s likely that the pledge law will be struck down. The precedents existing apply to longstanding things, things that were already settled long ago. However, based on the Breyer quote from above, since the state acted, “with the ostensible and predominant purpose of advancing religion,” I don’t see how the pledge law can stand.

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