“Civil Disobedience” in Utah


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CIVIL DISOBEDIENCE IN UTAH

in response to the federal government’s shutdown of national parks, San Juan County in Utah has threatened to take over the national parks within its borders:

http://www.npr.org/blogs/thetwo-way/2013/10/09/231086726/county-in-utah-threatens-takeover-of-national-park-areas?utm_medium=Email&utm_campaign=20131013&utm_source=mostemailed

NPR: Utah County Threatens Takeover of National Parks

http://www.npr.org/blogs/thetwo-way/2013/10/09/231086726/county-in-utah-threatens-takeover-of-national-park-areas?utm_medium=Email&utm_campaign=20131013&utm_source=mostemailed

The NPR article opens with the following:

“San Juan County has become the fifth county in Utah to declare a state of emergency in response to the closure of National Park areas.

“But the San Juan County Commission has also decided to storm National Park Service barricades, take control of some parks, and reopen them to the public.

“‘This is civil disobedience,’ says Phil Lyman, a CPA and county commissioner from Monticello, Utah, in the southeastern corner of the state. ‘What’s happening to us is wrong.'”

San Juan County plans to use sheriff’s deputies, search and rescue volunteers, firefighters, EMTs, portable toilets, garbage trucks and three mobile command centers in its operation of the national parks.

Yes, this would be an act of civil disobedience … and I applaud it!  This is exactly what government should do in an emergency — step in and fix the problem.  Unfortunately, the bloated, arrogant, over-weening federal government doesn’t give a damn about the hardships that its “shutdown” has created for local communities. 

So, those local communities have to take it upon themselves to do what’s best for their people.  More power to ’em!

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ARIZONA AGREEMENT

The state of Arizona has Reached an agreement with the federal government to re-open the Grand Canyon:

Grand Canyon Train Station 1981

Grand Canyon Train Station 1981

http://news.yahoo.com/grand-canyon-opens-state-fed-natl-parks-deal-194332701.html

Grand Canyon

Grand Canyon

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THE FEDERAL GOVERNMENT & OTHER STATES

The federal government has also announced its willingness to cooperate with other states that want to reopen national parks:

http://www.usatoday.com/story/news/politics/2013/10/10/canyon-rushmore-shutdown-national-parks-interior/2962499/

Note the two caveats to this agreement, however:

“Interior Secretary Sally Jewell told state officials that she would consider agreements with governors who are willing to fully fund National Park Service personnel to reopen the 401 parks nationwide that have been closed since Oct. 1.”

And:

Blake Androff, an Interior Department spokesman, stressed that the state’s payments would be viewed as donations and would not be reimbursed unless Congress passed legislation to do so.”

In other words, we’re willing to let you do our job — a job that we can’t or won’t do, as long as you pay for it and don’t expect us to reimburse you.  What a shameful disgrace.

Puts me in mind on one of Thomas Jefferson‘s comments on government:

“I hold it that a little rebellion now and then is a good thing, and as necessary in the political world as storms in the physical.”  See Note below.

It seems likely that Jefferson would approve of San Juan County’s plans to exercise some civil disobedience and “a little rebellion”.

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Note:  The Jefferson quote is from a letter written by him from Paris on January 30, 1787, to James Madison.  The full text of the letter is available on the “Archiving Early America” website here:

http://www.earlyamerica.com/review/summer/letter.html

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Grand Canyon Photos © 2013 Jim Reilly

Trashing the 1st Amendment in Arizona


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Right wing conservative legislators in Arizona have proposed a new law which would, in blatant violation of the 1st Amendment to the U.S. Constitution, require that high school students recite an oath of allegiance as a prerequisite to graduating from high school.  The legislation would require recitation of the following oath:

“I, _______, do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic, that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge these duties; So help me God.

See Note 1 below for online news articles and commentary about this proposed legislation.

“Freedom of speech” including both the freedom to speak and the freedom not to speak, any requirement that a high school student recite an oath of allegiance in order to graduate is almost certainly unconstitutional as a violation of the 1st Amendment.

More significantly, and the primary point of the controversy over the proposed legislation, is that  the requirement that students invoke “god” in the oath clearly violates the 1st Amendment’s freedom of religion clause.

As a reminder, here is what the 1st Amendment says:

          Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Proponents of this proposed oath can draw no support from the Ninth U.S. Circuit Court of Appeals decision in Newdow v. Rio Linda Union School District, in which the phrase “under god” in the Pledge of Allegiance was upheld in a 2-1 ruling.  The majority opinion in that case, by Judge Carlos Bea, said:

          We hold that the Pledge of Allegiance does not violate the Establishment Clause because Congress’ ostensible and predominant purpose was to inspire patriotism and that the context of the Pledge—its wording as a whole, the preamble to the statute, and this nation’s history—demonstrate that it is a predominantly patriotic exercise. For these reasons, the phrase “one Nation under God” does not turn this patriotic exercise into a religious activity.

See Note 2 below for the full text of the Newdow decision.

Significantly, however, this ruling was predicated, in significant part, on the fact that the practice involved, teacher-led recitation of the Pledge of Allegiance, was required only of “willing” students.  The ruling was therefore consistent with other Circuit Court decisions upholding similar practices in Virginia and Illinois.  The statutes in each of those states allowed any student who objected to reciting the pledge to sit or stand silently.

See Note 3 below for the Virginia and Illinois cases citations.

As noted by Judge Stephen Reinhardt in his Newdow dissent, even this option should not have saved the school policy:

          Were this a case to be decided on the basis of the law or the Constitution, the outcome would be clear. Under no sound legal analysis adhering to binding Supreme Court precedent could this court uphold state-directed, teacher-led, daily recitation of the “under God” version of the Pledge of Allegiance by children in public schools. It is not the recitation of the Pledge as it long endured that is at issue here, but its recitation with the congressionally added two words, “under God”words added in 1954 for the specific religious purpose, among others, of indoctrinating public schoolchildren with a religious belief. …  Only a desire to change the rules regarding the separation of church and state or an unwillingness to place this court on the unpopular side of a highly controversial dispute regarding both patriotism and religion could explain the decision the members of the majority reach here and the lengths to which their muddled and self-contradictory decision goes in order to reach the result they do.

          To put it bluntly, no judge familiar with the history of the Pledge could in good conscience believe, as today’s majority purports to do, that the words “under God” were inserted into the Pledge for any purpose other than an explicitly and predominantly religious one: “to recognize the power and the universality of God in our pledge of allegiance;” to “acknowledge the dependence of our people, and our Government upon the moral direction and the restraints of religion,” … and to indoctrinate schoolchildren in the belief that God exists. Nor could any judge familiar with controlling Supreme Court precedent seriously deny that carrying out such an indoctrination in a public school classroom unconstitutionally forces many young children either to profess a religious belief antithetical to their personal views or to declare themselves through their silence or nonparticipation to be protesting nonbelievers, thereby subjecting themselves to hostility and ridicule.  (emphasis added and citations omitted)

In any event, it is clear that even under the rulings in Newdow, Myers & Sherman, the proposed Arizona legislation, which provides no exception for those who object to the final clause of the oath and which prevents an objector who declines to recite the oath from graduating, would be unconstitutional.

Regarding the lack of an exception for conscientious objection to the oath, one of the sponsors of the bill, freshman Republican representative and Tea Party member Bob Thorpe,  said, “In that we had a tight deadline for dropping our bills, I was not able to update the language”.  Which is all well and good, except I can’t help wondering why it is that “the language” wasn’t properly — and constitutionally — crafted in the first place.  Are representative Thorpe and his co-sponsors — Republican representatives Sonny Borrelli, Carl Seel, T.J. Shope, Jeff Dial, David Livingston, Chester Crandell and Steve Smith — all really that ignorant of the law and the constitution that they couldn’t have written this bill correctly and constitutionally in the first place?

Thorpe also said,Even though I want to encourage all of our students to understand and respect our Constitution and constitutional form of government, I do not want to create a requirement that students or parents may feel uncomfortable with.”  In that case, Mr. Thorpe, perhaps you should withdraw your ill-considered and unnecessary proposal.

Finally, as noted by Comedy Central’s Ilya Gerner, “Nothing says ‘I take this obligation freely’ quite like a state law that withholds your diploma unless you swear an oath”.  Maybe Arizonans should consider electing Gerner, who appears to have a better understanding of the law than their current representatives, to their state legislature.

See Note 4 below for Gerner’s “Comedy Central’s Indecision” blog post.

A personal aside:  I was a 9 year old elementary school student when the Pledge of Allegiance was modified on June 14, 1954, to add the words “under god”.  Although I did not speak out against the change then, as I would now, I soon after adopted the practice of omitting those words each day when we recited the pledge, and have continued doing so to this day. 

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Note 1:  For news article about this proposed legislation, see these websites:

http://current.com/groups/news-blog/94031387_arizona-bill-would-require-loyalty-oath-for-high-school-graduation.htm

http://www.theblaze.com/stories/2013/01/26/arizona-bill-would-require-hs-students-to-swear-constitutional-oath-under-god-to-get-their-diplomas/

For a commentary about this proposed legislation from the atheist perspective, see this article on the website “Friendly Atheist”:

http://www.patheos.com/blogs/friendlyatheist/2013/01/25/arizona-republicans-propose-bill-that-would-not-allow-atheists-to-graduate-high-school/

Note 2:  For the full text of the Ninth Circuit Court of Appeals Decision in Newdow v. Rio Linda Union School District, see:

http://scholar.google.com/scholar_case?case=11662288665673910405&hl=en&as_sdt=2&as_vis=1&oi=scholarr

Note 3:   The Virginia case referred to above is Myers v. Loudoun County Public Schools.  The full text of the opinion in this case is available here:

http://scholar.google.com/scholar_case?case=1292322060893856606&hl=en&as_sdt=2,5&as_vis=1

The Illinois case referred to above is Sherman v. Community Consolidated School District 21 of Wheeling Township.  The full text of the opinion in this case is available here:

http://scholar.google.com/scholar_case?case=17988630665576858060&hl=en&as_sdt=2,5&as_vis=1

Note 4:  For Ilya Gerner’s “Comedy Central’s Indecision” blog post about this proposed legislation, see:

http://www.indecisionforever.com/blog/2013/01/23/arizona-legislators-propose-loyalty-oath-for-high-school-graduation