Friday, March 12, 2010

Ninth Circuit Court of Appeals Confuses Itself

Fearing ultimate and inevitable reversal at the United States Supreme Court, the Ninth Circuit Court of Appeals sitting in San Francisco has rejected the petition of serial litigator Michael Newdow who wished to remove the words "In God We Trust" from American coinage and "Under God" from the Pledge of Allegiance.

The most reversed Circuit Appellate Court in the United States had previously ruled in Newdow's earlier case that the words violated the separation of church and state (which is not mentioned in the Constitution). In all fairness, the Ninth Circuit was overruled that time by the United States Supreme Court on procedural grounds. Newdow had objected to the Pledge words on behalf of his minor daughter whose school recited the Pledge each day. The Supreme Court declared that the father had no standing to file the suit, since he wasn't the party directly affected by the Pledge. However, the majority decision used wording about historical context and government endorsement of religion that were clear warnings that if a similar case were to be brought before them again in proper form by a petitioner with proper standing, they would still rule against the petition and establish once and for all that the words do not offend the First Amendment.

You may be somewhat familiar with this ongoing legal laugh-fest, but you should have a little background on the off-kilter Newdow. He's not stupid by any means, just slightly crazed. A Brown University graduate, he has many of the traits of those who got their degree from the most leftish of the Ivy League schools. Still, his degree was in biology, so that probably wasn't the sole reason for his cuckoo political stances. He attended UCLA Medical School, and was licensed as a California M.D. in 1978. He then went on to the University of Michigan Law School, getting his law degree in 1988 and passing the Bar Exam in 2002. I'm not quite sure why it took him so long to pass the Bar Exam.

He has told the Brown University Alumni Magazine that he can't remember ever believing in God and that he was "born an atheist." But still, he is an ordained minister of the Universal Life Church. Don't let that throw you. So am I. It's a scam not-for-profit outfit located in Modesto, California that somehow has never been found to be unlawful. Pay the money, you get your ordination. I got mine when some of my fellows got drunk and decided that I would be a very fine Universal Life Church Minister. The day I was appointed to the pro-tem municipal court bench, they presented the certificate to me, and chanted God bless Judge Hawk. We all had a good laugh, although my wife never entirely saw the humor in it. Now you know how meaningful the expression "sober as a judge" really is.

But he is also the co-founder of an organization called FACTS (First Amendment Church of True Science). Its purpose is identical to that of the better-known Americans United for the Separation of Church and State. Both organizations claim to be supporters of freedom of religion by keeping the government from ever mentioning God, but both organizations are actually largely populated and led by atheists and agnostics (or practitioners of "religions" such as Wicca and Native American Shamanism). The fact is that they despise all forms of traditional religion, and would just as soon repeal the First Amendment wording protecting the free expression of religion anywhere outside their odd temples of non-worship. In an appearance on Fox's Hannity and Colmes, Newdow declared that "In God We Trust" on currency is comparable to racial segregation and separate drinking fountains for blacks in the segregated South. What the two have to do with each other, nobody, including Newdow himself, could explain.

Newdow has filed multiple lawsuits in his cause. All were rejected, sooner or later, including his suit to forbid George Bush the use of the words "so help me God" spoken at the end of the Presidential oath. He forgot to notice that it is not only not a government endorsement of religion, but isn't even in the actual oath. Each President since Washington has said the words, but they aren't required. He tried it again against President Obama, but changed the petition slightly so that it claimed that the injunction should not be against the President, but against the Chief Justice who administers the oath. That got laughed out of court as well. The federal judge wryly commented that he didn't think he had the authority to issue an order against the Chief Justice of the United States Supreme Court.

Newdow is not your run of the mill crazy. He is quite an extraordinary crazy. After the first go-round with the school Pledge issue, it was revealed that the daughter wasn't at all offended by saying the Pledge. She just went along with it to avoid further conflict with her father. But it caused so much family friction that his wife divorced him and was granted legal and physical custody of the girl (which is why the Supreme Court found that he had no standing to sue on her behalf, even though that hadn't bothered the Ninth Circuit judges). Newdow oddly claimed that the daughter was conceived when his future wife raped him on a camping trip to Yosemite in 1993. One judge called the accusation "disingenuous" in his ruling. Are you getting a good feel for this guy's thinking?

The three-judge Ninth Circuit Federal Panel split 2-1 on the March 11 ruling against Newdow's petition. Not surprisingly, Judge Stephen Reinhardt (whom I've mentioned many times before as one of the most left-leaning judges on any court) was the lone vote in favor of Newdow. He wrote a 123 page dissent in an attempt to overwhelm the 60 page majority opinion. Reihnardt is not only noted for his left wing views, but is also a champion of gas-baggery. Sticking to the issue (called "distinguishing the case") is not his strong point. In one murder case, a lawyer was heard to say afterwards that Reinhardt had attempted to cite every case of murder since Cain killed Abel. Also, not surprisingly, Reinhardt had written the lengthy majority opinion finding Newdow's argument valid in the prior case. Reinhardt is not a happy camper.

Judge Carlos Bea wrote the majority decision, including wording that had been hinted at in the Supreme Court decision. "The Pledge of Allegiance serves to unite our vast nation through the proud recitation of some of the ideals upon which our Republic was founded." Bea noted that schools do not require students to recite the Pledge to which the words "under God" were added by 1954 federal law. Contextually, the Congress was setting itself against the power of the godless Communist hegemony in Russia and Eastern Europe as well as the quickly emerging Chinese Communist regime.

Never daunted (and apparently never instructed by failure), Newdow has filed a motion for reconsideration by the Panel, and failing that, will appeal to the United States Supreme Court. Says Newdow: "The whole argument that 'under God' wasn't placed in the pledge for religious purposes is bogus. I hope people recognize this [the lawsuit] is not against God or people who believe in God. It's about the government not treating people equally on the basis of their lawful religious views." You know, like racial segregation and separate drinking fountains for blacks.

Newdow is not optimistic about his chances at the Supreme Court. "They don't want to do what's politically unpopular. The Supreme Court will not hear a case that upholds the Pledge of Allegiance. It's very unlikely at least," he said. It would never occur to him that the Supremes might reject the case because it's frivolous, fully-litigated, and contains no valid constitutional arguments which prove the Pledge violates the establishment clause, or in any way amounts to excessive government intrusion in the practice of religion. It's uncertain whether Newdow will go on with the "In God We Trust" currency verbiage case, since the same Panel ruled 3-0 saying the phrase is ceremonial and patriotic, not religious. How Reinhardt explains that inconsistency in his judicial views may never be known, since he didn't dissent. Maybe he was just worn out from his dissent in the other case.

35 comments:

Joel Farnham said...

http://www.youtube.com/watch?v=TZBTyTWOZCM

This is Red Skelton's explaination of the Pledge of Allegiance. I think it is appropriate. :-)

LawHawkSF said...

Joel: I've seen that video after having it sent to me by several different friends over the past year or so. It's touching, and truly patriotic, and I recommend it to everyone.

CrisD said...

Joel, you ruined my mascara!

Pity that crazy man's little daughter..

Tennessee Jed said...

Sounds like Newdow is obsessed. Thanks for a typically excellent write-up, Hawk.

Writer X said...

Newdow sounds like a really bad Lifetime Channel movie. His poor daughter. At what point is this guy officially considered a court pest? Is there such a thing as nuisance lawsuits? Unbelievable.

LawHawkSF said...

CrisD: At least she and her mother got away from him. And he probably doesn't bug them much about visitations. Too much time in court.

LawHawkSF said...

Tennessee: I wish we had a psychologist on staff. There must be a name for this kind of behavior beside "paranoid." I admire people who will go to any lengths for a noble cause--but this?

AndrewPrice said...

I never knew you were ordained. . . LOL!!

This guy is a total loser. He's the kind of guy that courts should not only smack down, but should impose sanctions. But they don't, they humor him.

FYI, back in Fourth Circuit country, they used to all the Ninth Circuit "the Acid Circuit" becuase we all assumed they were dropping acid.

LawHawkSF said...

WriterX: Yeah, and if they did do a movie about him, it would star Matt Damon, and he'd be some kind of hero. Lone patriot, sacrificing his life for the cause of freedom. It could be called "A Dutiful Mind." Or maybe, "A Doo-Doo Full Mind."

There are methods available for stopping "overly litigious lawyers," but they're rarely used. The courts would rather err on the side of allowing people their right to seek redress. And this is a First Amendment case, which is always given as much deference as absolutely possible. He can be sanctioned (which is like money damages for misbehavior by a lawyer), and if he does move for reconsideration or apply for certiorari to the Supreme Court, this might just be the appropriate time.

The Supreme Court probably doesn't need to waste its time with fools like this, but if it did hear the case, it would then make the Ninth Circuit ruling in the case binding nationally--so it wouldn't be all bad.

LawHawkSF said...

Andrew: I try to keep my holiness under wraps. I was also a church organist when I was younger. When I got my ULC sky pilot's license, I told my wife I could now advertise: "I can marry you, and throw in the wedding music at no additional charge. But wait! There's more! I will throw in an option on a discounted divorce." She didn't think that was funny, either.

You don't want to know what we California lawyers have to say about the Ninth Short Circuit. Back in the dark ages of my practice, I had a case pending before the Ninth Circuit and a case pending before Rose Bird's California Supreme Court. I was nearly suicidal. LOL

StanH said...

Newdow! What a waste of oxygen.

This is one thing that you can hand liberals, they just keep trying, “inch by inch, everything’s a cinch.”

LawHawkSF said...

StanH: Or as we say, death in small doses. I'm not becoming Pollyanna, but I'm even sensing some winds of change in the courts. The Ninth Circuit could still have gone 2-1 the other direction (Rheinhardt's a very intimidating judge). But the Roberts Court has changed the dynamic. Many of these lower court judges may be doctrinaire, but they don't want to become historical jokes. With only one Supreme Court justice likely to leave in the next year (and it's a liberal, so it won't make any difference), these lower court judges who are left, but not doctrinaire, know the chances of the makeup of the high court changing are getting slimmer by the day. Obama just can't move fast enough on his appointments, and though he'd love to fill every Circuit with leftists, he's too busy trying to save Obamapelosicare.

AndrewPrice said...

Lawhawk, That would make anyone suicidal! LOL! I hope your client was the insane one, otherwise I suppose you lost?

LawHawkSF said...

Andrew: Batted .500. Opposing counsel in the federal matter was as afraid of the bipolar judges on the Ninth Circuit, that we made a deal and I withdrew the petition. Unfortunately, the client for the other attorney was the crazy one (a drug addict who abandoned her baby for over two years), so naturally, we lost in the California case.

USArtguy said...

" It could be called "A Dutiful Mind." Or maybe, "A Doo-Doo Full Mind."

"But wait! There's more!"

LOL! LawHawk, you should consider a semi-retirement career as an infomercial copywriter!

Thanks for the more complete picture of this loser Newdow. Well done.

I'm curious, what typically becomes of dissenting opinions, especially long winded ones? Do they serve much purpose other than to collect dust after being bound in leather and set on a shelf?

LawHawkSF said...

USArtguy: Dissenting opinions are like old soldiers, they slowly fade away. They cannot be cited as precedent (obviouly), but "crusaders" will often cite them as argument. And in the case of brilliant dissents (not like Reinhardt's), close decisions with well-reasoned and memorable dissents can become the law at some later date. The only people who save Reinhard's opinions are those with multiple bird cages with very large birds.

A. Zoroaster said...

Michael Newdow has received multiple death threats for trying to obtain constitutionally protected rights for the most despised people in America, i.e., atheists. And you, who apparently don't have the integrity or the courage to polish his shoes, provide ammunition for such would-be assassins with the libelous claim that he's crazy. You're a disgrace to the law and to humanity.

LawHawkSF said...

A. Zoroaster: Thank you for joining us from la-la land. Have you had your morning drugs yet? I spent many years of my life as a defense attorney defending people with very, very unpopular views. If you weren't a drive-by troll, you'd know what my background is. You would also know the extent of my contempt for people who threaten others for their political and/or religious views. "Crazy" is a term which has no legal meaning, and the courts have long protected its use in political discourse and fair comment. You might want to bone up on your understanding of libel.

Criticizing a man with an obvious case of zealous monomania is not in any way tantamount to encouraging his death. That's a DailKos/HuffPo talking point. Grow up.

My associate and I are advocates of the old school concept that every dog is entitled to one bite. You've had yours. If you have something intelligent to offer, feel free to do so. If not, we have this wonderful thing called "the delete button."

JTB said...

LawHawk--The Newdow event is a fine illustration of the idiocy our country has collapsed into.
Every one seems to misunderstand what the Constitution means in it's address of religion.
Separation was not what was said or meant.
The creation of a State Church was and is forbidden, that is somehow missed.
Why is it missed? I think it is missed by the same faulty logic some one attempts
to justify their speeding ticket by claiming " it was not posted".


I'm sure this can all much more cleanly stated by you.


As for the last post (A. Zoroaster) is a fine example of a seriously flawed thinking process.
It is that variety of flawed thinking and then ranting loudly that has sunk us to the dismal bog we are in. Despised atheists? Gimme a break that has never been what I have seen or heard from some of the most profoundly dedicated Christians I have met in over 70 years. Christians if addressing atheism do so out of concern over their eternal soul never from the position of despising them.
Secondly atheism is only the denial of the existence of God, not that he must be purged from the rest of us. Our Constitution offers them the same rights to think what ever they want as it affords me to think what I want. They have no more right to impose their belief on me than I have to impose mine on them.


Here I go preaching to the choir. It is just so damned wrong that one can't even read about it with out getting rankled.

HamiltonsGhost said...

Lawhawk--Does our new Zoroastrian poster realize that if you act weirdly enough you're going to attract other weird people?

LawHawkSF said...

HamiltonsGhost: I think he borrowed a few lessons from Patrick Kennedy. Only in this case we couldn't see the red face or hear the screams. I condemn threats of any kind against Newdow for his atheistic views. And to paraphrase, I would defend to the death his right to hold them. Zoroaster is another one of those fools who assume that they know everything and are entitled to draw their conclusions about both an opinion and the author of the opinion based on their own extremely narrow viewpoint. How many of us even give a thought to atheists, let alone to killing them?

If he had even bothered to read the introductory paragraphs to my post today, he would know that I am among those who criticize Elizabeth Cheney for questioning the qualifications of DOJ lawyers simply for having represented terrorists in the past. That's a lawyer's job, and the more ethical the lawyer, the more likely he or she is to be found representing some pretty nasty characters. The issue is actually: "What are their views on the law, and will they perform their duties as the legal advocates for the people of the United States?" I've represented murderers and political dissidents, but I don't think anyone who knows me thinks I'm a murderer or a terrorist because of it. The real question then becomes: "Did you represent them, or do you agree with them?" That I think we have a right to know. I don't want someone who believes that "one man's terrorist is another man's freedom fighter" representing the United States and its people in a terrorist trial.

CalFederalist said...

LawHawk. I'm willing to bet the Pope gets more death threats in a day than Newdow has gotten in his entire miserable life.

LawHawkSF said...

CalFed: And as far as I know, nobody has actually tried to carry out those threats against Newdow. Get into the public eye, and I guarantee you will start getting death threats. As for the Pope, unlike Newdow, many threats have been both real and palbable. And there have been attempts on the lives of both the current and prior Popes. But for Zoroaster, that's different. Only people who believe in the non-existence of God are entitled to hysterical sympathy.

A. Zoroaster said...

JTB: You ask "Despised atheists?" and added: "Gimme a break that has never been what I have seen or heard from some of the most profoundly dedicated Christians I have met in over 70 years."

The descriptor "despised atheists" is the result of a 2006 sociological study at the University of Minnesota. The following is from the University's News Service (see, e.g., http://www.concentric.net/~Worgar/atheists.htm ):

"Americans rate atheists below Muslims, recent immigrants, gays and lesbians and other minority groups in "sharing their vision of American society." Atheists are also the minority group most Americans are least willing to allow their children to marry.

"Even though atheists are few in number, not formally organized and relatively hard to publicly identify, they are seen as a threat to the American way of life by a large portion of the American public. "Atheists, who account for about 3 percent of the U.S. population, offer a glaring exception to the rule of increasing social tolerance over the last 30 years," says Penny Edgell, associate sociology professor and the study's lead researcher.

"Edgell also argues that today's atheists play the role that Catholics, Jews and communists have played in the past—they offer a symbolic moral boundary to membership in American society. "It seems most Americans believe that diversity is fine, as long as every one shares a common `core' of values that make them trustworthy—and in America, that `core' has historically been religious," says Edgell. Many of the study's respondents associated atheism with an array of moral indiscretions ranging from criminal behavior to rampant materialism and cultural elitism."

In addition, there is the 1999 Gallup poll (e.g., see http://atheism.about.com/od/atheistbigotryprejudice/a/AtheistSurveys.htm ) that found the following percentages of people saying they would REFUSE to vote for "a generally well-qualified person for president" on the basis of the indicated characteristic:

Catholic: 4% (1937: 30%)
Black: 5% (1958: 63%, 1987: 21%)
Jewish: 6% (1937: 47%)
Baptist: 6%
Woman: 8%
Mormon: 17%
Muslim: 38%
Gay: 37% (1978: 74%)
Atheist: 48%

There is also the following (quoted from the same reference):

"Finally, other studies and surveys indicate that prejudice against atheists is going back up. A March, 2007 survey done by Newsweek shows that 62% of people would refuse to vote for any candidate admitting to being an atheist. Republicans were, predictably, the most bigoted at 78%, followed by Democrats at 60% and independents at 45%."

As for your "Christians if addressing atheism do so out of concern over their eternal soul never from the position of despising them", polling data do not support your assessment. Again from the same source (http://atheism.about.com/od/atheistbigotryprejudice/a/AtheistSurveys.htm):

"A 1995 study done by Barna revealed that the prejudice and bigotry of born-again Christians towards atheists was almost universal, but still very high among non-Christians. Here are the numbers of born-again Christians who regard the impact of these groups as negative:

Islam: 71%
Buddhism: 76%
Scientology: 81%
Atheism: 92%

I provide additional data in my book at http://zenofzero.net .

A. Zoroaster said...

CalFederalist: Surely you see that your willingness to gamble on who gets more death threats in a day, the Pope or Newdow, is entirely beside the point. The important point is that the irresponsible post by LawHawkSF further endangers Newdow's life. If LawHawkSF were to be responsible, he would address the issues raised in Judge Reinhardt's minority opinion, e.g., see my blog at http://meansnends.blogspot.com/ .

Joel Farnham said...

A.Zoroaster,

Lighten up. I come here to understand. I don't come here for PC BULLXXXX. So far, all you have given is BS. LawHawk, where is that delete button?

A. Zoroaster said...

Joel:

Recall that, at your blog, you wrote:

"Red State Does not allow people who are not of the same Ideological bent to post. The only ones allowed are people who don't 'upset' the stodgy ones."

Pot: meet kettle.

LawHawkSF said...

A. Zoroaster: Thank you for sharing. I may have to consider that delete button. Your obvious hatred for me, our readers, and anybody with a differing opinion from yours is clearly endangering our lives.

I've read Rheinhardt's dissent.
It isn't any more convincing that most of his lengthy opinions.

We get your point. You and Newdow are members of an oppressed minority which is about to be wiped out in a massive roundup of atheists being conducted by radical religionists. Now take a big swig of Nyquil and go to bed. Enough, already.

rlaWTX said...

just wondering: since when did not trusting someone = wanting them dead?
I don't trust Dems (generally), but wanting them dead? Nah, I want 'em to pay their taxes...

As for those 4 groups viewed to have a negative impact, - um - yeah - so what?

(I know, late to the party - but I couldn't help myself...)

LawHawkSF said...

rlaWTX: Better late than never, right? Apparently, we have a better grasp of the obvious than some of our paranoid brethren. The First Amendment was designed to protect offensive speech. Otherwise, what's the point? Who's going to suppress speech that everybody agrees with? That simple concept has been whittled away for a very long time now, culminating in the noxious "hate speech statutes."

Somehow, I can't believe that every time I launch a strong criticism of a fellow human being I am creating a whole subclass of assassins. There's a reason why words can be suppressed only in the case of "clear and present danger." Those words must occur at such a time, in such a place, and in such a way as to be extremely likely to produce an immediate unlawful action on the part of the hearers. Despite Zoroaster's fear, I just cannot fit what I said into the clear and present danger test. Apparently, paranoia strikes deep in the heartland.

A. Zoroaster said...

rlaWTX: It's not normally a matter of "not trusting someone = wanting them dead". Instead, it appears that religious extremists feel threatened by anyone who undermines their fairy tales. Illustrative is the following, copied from http://www.daylightatheism.org/2006/04/filth-based-initiatives.html .

Consider some of the vindictive e-mails that were sent to the Wisconsin-based Freedom from Religion Foundation after one of their spokespeople, Anne Laurie Gaylor, appeared on CNN. These e-mails were reprinted in the January/February 2006 edition of the FFRF newsletter Freethought Today, which is where I draw them from (all spelling and grammar as in originals):

"You make me vomit and sick and I pray to GOD that you go to hell."

"Your a complete moron if you can't seem to understand the constitution of the United States that scum like you are trying to debase. All you liberal bitch's, along with the homosexual ACLU scum should be lined up against the wall."

"Your closed-minded bigotry is so unrepentantly sub-human."

"I bet you're a drunken whore."

"You Ms. Gaylor, and people LIKE you are the scum of America. Ane if you are going to appear on any more talk shows, I would consider some plastic surgery and perhaps some dental work!"

"People like you who interpret the bible wrong and try to sell this BS to people should be 'stoned to death'"

Or consider the blog Molly Saves the Day, which in light of recent events in South Dakota posted an essay on how to set up an abortion clinic at home. Some of the comments sent to the author of that blog were stunning in the depth of their furious hatred and spiteful rage:

"You are a fucking sicko. When you die, you will find yourself burning in the deepest depths of hell. Being Satan's chewing gum next to Hitler and Judas will be nice, won't it? And I'm no fucking conservative. The day a woman kills her baby with your procedure will be the day you are damned, you pagan bitch."

Or Michael Newdow, the atheist who filed a constitutional complaint over religious language in the U.S. Pledge of Allegiance. The flood of hate mail and death threats against him was to be expected, of course; but more surprisingly, even some of the reporters who covered Newdow's story were targeted. Writes Bob Norman of the Palm Beach, Florida New Times, in his article "First Pledge":

"...some extremist Christians... once again exposed their savage underbellies. They barraged Newdow with hundreds of death threats and hate mail. I know this not only because he shared many of them with the national media but because I received them too.

"...A man who identified himself as Scott Sandlin wrote in the subject line of his e-mail: "YOU should be shot." I've written about mobsters, rogue cops, dirty politicians, and all manner of South Florida hustlers in the past, but I've never been threatened like this."

Even Judge John E. Jones III, a Lutheran appointed by George W. Bush, is not immune from the religious right's bile. After a strong and incisive ruling against the Intelligent Design movement in the Kitzmiller v. Dover Area School District case, Judge Jones received so many hostile and threatening e-mails that the U.S. Marshals Service put him and his family under round-the-clock protection.

Joel Farnham said...

A to Z,

Strangely enough, none of these have been assasinated, nor targeted. If they had, it would have been blazoned across MSM with red fiery letters and blamed on Bush, Cheney and tea-partiers, not necessarily in that order.

Atheism is just another wacky cult in the pantheon we call the human condition. Get over yourself. Find someone who likes your eyes and procreate. You are boring me to tears.

A. Zoroaster said...

Joel:

By "Bush" I assume you meant George H.W. Bush, who said:

"No, I don't know that atheists should be considered as citizens, nor should they be considered patriots. This is one nation under God."

As for "atheism is just another wacky cult", I wonder how you consider that to be consistent with the fact that 93% of the members of the U.S. National Academy of Sciences are members of the same "wacky cult".

Oh, and thanks anyway for the suggestion about how I could arrange to procreate, but you know, I've already done my part. I've been married, now, for more than 50 years and have five grandchildren.

Joel Farnham said...

LawHawk,

Sorry, I thought I was being clever. Oh, well. I won't respond to another TROLL again.

LawHawkSF said...

Joel: It's becoming extremely tiresome. Just remember the admonition DFTT. Eventually, when nobody responds to his ever-lengthening missives, he'll tire of the whole thing and go on to living another thirty or forty years in happy atheism. I wish him well.

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