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My refusal at the city council was caught on video (my words barely picked up, but the chair's reaction confirming my description) --not too dramatic, except for me, since I was also aware that if there had been a different presiding officer, he could have done exactly what the Mississippi Judge did, had me prosecuted for disorderly conduct. Up until now I thought such an event pretty unlikely, an indulgence in a bit of paranoia; but if this Judge is not sanctioned for his action such a demand will be seen as acceptable, with dire consequences to who we are as a people.
I had drawn my authority, actually more a mandate, not to be coerced into reciting the Pledge from these inspired words written by Justice Robert Jackson in the 1943 decision, West Virginia v. Barnette that overturned a law that required school children to recite the Pledge.
"To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds."Stare Decisis" is the legal principle that decisions of the Supreme Court are to have an assumption of validity in controlling subsequent cases. Implicit in this is that all lower courts are bound by such decisions unless they are overturned. Often those in law enforcement are not aware of such decisions and breach their strictures, or legislative bodies ignore such principles for political expediency, knowing that the legislation will be overturned on appeal. But, when a state judge chooses to ignore such controlling law, one well known to lawyers, and in defiance of this law goes so far as to incarcerate someone for acting on it's protections, it must not be tolerated.
We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us."
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Judges at all level have wide ranging immunity for their actions relating to carrying out their responsibilities, but it is not absolute. This Judge, Talmadge Littlejohn, committed a crime "under the color of law" that far from being mitigating is an enhancement of the offense, as it goes beyond the harm done to the individual to taint the institution of law enforcement that he represents.
We pledge resisters arouse strong emotions, and for this reason I've stayed pretty well under the radar, but not completely. The Pledge was the source of a political cartoon in the local San Diego newspaper, which after making my case to to the editorial page editor printed this letter (last one)in response:
The cartoon depicting the student who chose not to stand for the Pledge of Allegiance as a slacker oblivious to the sacrifice of our troops, some of whose injuries preclude standing, makes an important point, but not the one that Steve Breen intended.I have always felt that my quiet protest at the city council was in the highest tradition of the values of this country. I had always associated this demand for rote patriotism with the right wing, which was the reason I was profoundly disturbed by a small item in an early version of Barack Obama's presidential campaign website. It stated that he had sponsored a law that all high schools that took public funds must set aside time to recite the Pledge of Allegiance. Few realized it was an Illinois law that he was describing; but he chose to ignore the consequences of this statement beyond the benefit of affirming his patriotism. So, while the federal law of denial of the civil rights of this lawyer was apparently breached, it is unlikely that this Department of Justice will prosecute.
Those who make the choice not to participate in a ceremony that has become meaningless by compelled recitation, far from being slackers, are expressing the most cherished value of our country, the right to expression of independent thought. Those were the exact sentiments of the 1943 Supreme Court decision protecting such actions that still stands to this day.
Perhaps the wheelchair-bound Marine depicted in Breen's cartoon would still be able to walk, an unnecessary war avoided, had we as a people not become used to passively accepting political authority from our earliest years.
It would be sad if we were to forget something so clear to the justices of that wartime Supreme Court, that such unconditional obedience enforced by a false patriotism is alien to every principle of our constitutional democracy.
Since the lawyer who was jailed must continue to appear before this judge, he may decide it's not expedient to seek redress; but we were all the victims of this judicial criminality. Far from being trivial, such action under the guise of law, subverts the most profound law of the land. As was so clear in 1943 to the eight Supreme Court Justices, such enforced patriotism is nothing less than an emulation of the fascist ethos that was then sweeping the world.
There are only relatively few still living who have a vivid memory of what our nation was fighting in WWII. The Justices of that court had a clear image of patriotism among the Nazis, an enforced uniformity of respect for the symbols of national power. There was no dissenting there; as those who gave even a hint of demurring were soon silenced. The Americans of that time knew that reciting the Pledge of Allegiance, long before the egregious addition of religious affirmation in 1954, was accompanied by an outstretched arm, the Bellamy Salute, that looked to all the world as the German Seig Heil.
Those words of Justice Jackson are worth repeating, as they define the essential quality of our unique national ethos.
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.For me, spreading this message is worth taking some heat.
