Berry v. Devlin

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KEY:

Berry
Devlin

BATTLE:

The Establishment Clause of Amendment One
Make no law respecting establishment of religion
Seems pretty clear, seems pretty straight
Yet has managed to engender quite a debate
Newdow and Roes in the Circuit Nine
Had a problem with the pledgeís nature divine

As atheists theyíre not fond of "under God"
And argue that its presence is significantly flawed
But its been on books now in the U.S.C.
For 50 years and an additional 3
The House Report says itís a traditional statement
And the nod to God isnít particularly reverent

We have the facts presented in a nutshell
So the case has come before the Court of Bell
Medek and Robb are like logical ninjas
Their briefs are wicked and either might win yas
So we start our review and weíre told its de novo
Uphold the phrase or weíll deal it a deathblow.

Thereís a bit of debate about the phraseís purpose
Would love a clear-cut rule, but afraid thereís no litmus
OíConnor suggests that we think like observers
Yet her recognition of context is a major life preserver
The pledge was patriotic before this addendum
To make these words secular - like Beckham we bend em

The argument of Petitioner is strongly rooted
But it may be time that context is booted
Fact of the matter, take it from me
Under God - un-religious it just canít be
The pledge has served as a guiding baseline
Yet this smells fishy - a bit like bromine[1]

Letís look at the tests, weíll start with endorsement
In Elk River, OíConnor gave the blueprint
Start by looking at political standing
But donít forget the contextual branding
Elk River said religious meaning was long lost
But thatís like saying thereís no gator on lacoste[2]

The test from Lee v. Weisman looked for coercion
Aguillard was a most stringent version
The cases involved have engendered debate
Its about time we clarify and do so straight
Coerce means compel to a choice or an act
But pressure is something to which kids react

While in theory the Roe kids had a chance to opt-out
The Court justified abstractly and I fear that it copped out
A group of kiddies pledging with vigor
Its hard not to pledge when those kids are bigger
So I guess that Iím buying coercive peer pressure
A momentary shout out to Ariel Tesher[3]

The final test is citrus in nature
It starts with the purpose of the legislature
Prong one says this purpose - it must be secular
There are two other prongs cause the test is molecular[4]
The secular character is somewhat opaque
Open to interpretation by those with a stake

The primary effect is the prong the second
Didnít convey approval, Gaylord reckoned.
But the phrase "under God" implies approval
And little would be lost by a prompt removal
But Gaylord was spoken by a religious lot
So they get their way, while the Roes do not

The final test: is entanglement excessive?
Creating divisiveness that could become aggressive.
Or is it more entangling to mess with tradition
As, some are gonna call this an act of sedition
It depends on who you ask: what is excessive?
Some claim traditional while others repressive.

All of these tests and weíre back where we started
Certainly not a process for the fainthearted
I canít say Iíve clarified or analyzed well
So Iíll leave you with just one word of farewell
We live in a melting pot, for that we can brag
We donít need Ďunder Godí to be down with the flag


[1] Bromine is a nonmetallic halogen element that is isolated as a deep red corrosive toxic volatile liquid of disagreeable odor.
[2] There is, in fact, an alligator logo on lacoste clothing.
[3] Its not easy to rhyme with pressure.
[4] Molecular: of or relating to individual or small components

The man, the father, the atheist Newdow
Put his life and time into this judicial judo
He complained in vain and began this campaign
The Pledge of Allegiance he said ainít godís domain.
The establishment clause of the first amendment
Has been brought to court and called "defendant."

Jane and Pat Doe had a similar complaint
The pledge at board meetings was a constraint
"J" and "P" were stranded, had to stop coming
As though they were branded for not succumbing
Their kids at school were hurt, teased and taunted
Because an atheist pledge was all they wanted

Itís Roe child 2 that might believe in Zeus
Somehow his teachers canít stop the abuse
All these people have to feel like an outsider
ĎCuz the pledge of allegiance is a divider.
Should we be stripping "under god" from its verse,
Is there a way that could make matters worse?

Thatís a whole other question that Iíll consider.
Yeah, thatís right, Iím a judicial pinch hitter.
It may be religious to have "under god"
But taking it out, could be a faÁade.
For the government endorsing a religion
But here, that religion would be "none." [dramatic pause, for effect]

"Under God" is the basis of the complaint
Religious it may be, but a religion "God" ainít.
Forcing its removal would be in error
Itís not gonna make the times any fairer
Removing the ambiguity here
Just endorses the atheist frontier

This is a dangerous precedent to set
One that weíd eventually regret
Every phrase the that government uttered
Would be repeated, as though it were stuttered
Finding hidden meaning will become a game
Itíll made the first amendment a bloody shame

Letís talk ten Commandment sculpture
Religion is there, man, itís not obscure
But Van Orden v. Perry looked deeper[1]
Neutrality theory, it said, was a keeper
History and time were clearly fundamental[2]
When youíre looking at things governmental

So the Court drew the line and said it was fine
To have erected a shrine for the Divine[3]
Elapsed time and context were imperative.
The test the court used, clearly comparative.
So it went, until accommodation
Lee v. Weisman[4] made the new foundation

Look closely, though, itís like Van Orden v. Perry.
You get to hear why, in the words of Eric Berry
But first, take a step back, might as well
Time to give props to Derrick Bell.[5]
Now look at both cases and see what they say
They both imply a normative survey

"God" alone is clearly not dispositive
Look at Van Orden, it made that causative
The inquiry runs deeper - Is there intent?
You needs this to find an illegal element
"References to religion" are "inevitable"[6]
Thatís the official OíConner label

So whatís it take to be found illicit
Endorsement of a religion just canít be implicit.
Legislators remixed the Pledge long ago
DJ Congress decided to do so.
The motives of MC Senate were not pious
Espousing values was their whole bias

Just saying god is not illegal
Heck, itís god that keeps my rhymes regal
You need specificity where itís apparent
That the religion in question is transparent
Thatís the bar that we should employ
Letís not make the First Amendment a toy


[1] 125 S.Ct. 2854 (2005)
[2] Capital Square Review and Advisory Board v. Pinette, 515 U.S. 753, 780-81 (1995).
[3] Referencing Van Orden v. Perry
[4] 505 U.S. 577 (1992).
[5] Seriously. Do it.
[6] Elk Grove Unified School District v. Newdow, 542 U.S. 1,35 (2004)

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