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All
right, I'll take a whack.
Rehnquist, O'Connor, and Thomas for reversal. Kennedy joins them,
because he's a political animal and may want to "make it up" with the right
after Lawrence, sort of the way he did in Stenberg and Colorado v. Hill after
Casey (though I'm sure he's sincere in Hill, b/c his dissent there fits his 1st
Am views generally). Stevens and Souter are certain for affirmance.
Ginsburg and Breyer probably are too, but one or both may switch (probably via a
separate concurrence) to avoid an even split. Of the two, Breyer is the
more likely to do so: son of a public school teacher (if I remember correctly),
and solicitous for public schools, he may reluctant to hold that they have been
violating the Const for fifty years in a way that eluded the vigilance of the
Warren Ct.
Still,
most likely result: affirmance by 4-4. Also, Cubs win, Red Sox lose,
Yanks win the Series. Can't say I'm happy about any of
this.
David
M. Wagner
Regent
University School of Law
I
have been asked to speak about this case on the local media (as I am sure many
of you also have been), and I am curious what you experts expect the outcome
of the case to be, especially given that Scalia has recused himself.
Rebecca E. Zietlow
Professor of Law
University of
Toledo College of Law
(419) 530-2872
[EMAIL PROTECTED]
My
point exactly. The Denial of the U.S. petition means the focus is on
the state (or school district), not on the Act of Congress. So it is
Establishment Clause as incorporated, not as originally written. I
made the point in response to Bill Funk's post, which claimed in
part:
"First, while this case arises in a state
context, the addition of the words "under God" were made by a statute passed
by Congress, the core concern of the First Amendment. Second, while adding
such words may not directly "establish" religion, the law is "respecting an
establishment of religion." The law declares that the official pledge of
allegiance to the United States requires a recognition that the nation is
"under God," which logically requires an affirmance that God exists and that
the nation is subject to God's will and law."
John C. Eastman
Professor of Law, Chapman University
School of Law
Director, The Claremont Institute
Center for Constitutional Jurisprudence
I don't quite see the significance of the
denial of the SG's peititon -- a petition that was, in truth, not
much more than a press release. The United States was not injured by
the Ninth Circuit's decision. The court of appeals expressly
declined to enjoin any federal official, 328 F.3d at 484, and expressly
declined Newdow's plea to declare the federal law unconstitutional, id. at
490 Indeed, it is difficult to see how any court could enjoin, or decare
unconstitutional, the federal statute, because that law (4 USC 4) is
merely hortatory; it neither requires nor authorizes anyone to do
anything: "The Pledge of Allegiance to the Flag: 'I pledge
allegiance to the Flag of the United States of America, and to the
Republic for which it stands, one Nation under God, indivisible, with
liberty and justice for all.', should be rendered by standing at attention
facing the flag with the right hand over the heart. When not in uniform
men should remove any non-religious headdress with their right hand and
hold it at the left shoulder, the hand being over the heart. Persons in
uniform should remain silent, face the flag, and render the military
salute."
In other words, the U.S.
prevailed in the court below.
The real locus of dispute, as reflected
in today's denials and single grant, is the school board's
policy, not the federal statute.
----- Original Message -----
Sent: Tuesday, October 14, 2003 5:35
PM
Subject: Re: Justices Take Case on Pledge of
Allegiance's 'God' Reference
> Also significant, I think, is that the Supreme
Court DENIED the cert
> petition from the United States (and also
the petition that had been
> filed by Newdow himself), although it
did invite the Solicitor General
> to submit a brief in the case in
which it granted cert.
>
> John C. Eastman
> Professor
of Law, Chapman University School of Law
> Director, The Claremont
Institute Center for Constitutional
> Jurisprudence
>
>
> -----Original Message-----
> From: Steve Wermiel
[mailto:[EMAIL PROTECTED]
> Sent: Tuesday, October 14, 2003
2:26 PM
> To: [EMAIL PROTECTED]
> Subject: Re: Justices Take Case on Pledge of Allegiance's
'God'
> Reference
>
>
> The Court specified the
questions to be briefed. The second question
> seems to me to at
least raise the possibility that the emphasis in a
> decision could
be on the fact that the policy has teachers leading the
> pledge,
rather than simply on the addition of the words "under God" to
> the
statute. And there is also the standing question. Here is the
cert.
> grant:
>
> The petition for a writ of
certiorari is granted limited to the
> following Questions: 1.
Whether respondent has standing to challenge as
> unconstitutional a
public school district policy that requires teachers
> to lead
willing students in reciting the Pledge of Allegiance. 2.
> Whether
a public school district policy that requires teachers to lead
>
willing students in reciting the Pledge of Allegiance, which
includes
> the words "under God," violates the Establishment Clause
of the First
> Amendment, as applicable through the Fourteenth
Amendment. The Solicitor
> General is invited to file a brief in
this case on behalf of the United
> States.
>
>
>
> -----Original Message-----
> From: Bill Funk
<[EMAIL PROTECTED]>
>
Sent: Oct 14, 2003 2:46 PM
> To: [EMAIL PROTECTED]
> Subject: Re: Justices Take Case on Pledge of Allegiance's
'God'
> Reference
>
> Even without Justice Scalia on
the panel, the pressure on the Court to
> reverse the 9th Circuit
will be intense, and I cannot forget Justice
> Stevens dissent in
Texas v. Johnson, referring to the "intangible
> dimension" of the
case that would make normal First Amendment rules
> inapplicable.
Nevertheless, it is my hope that the Court will, as it did
> in the
flag burning case, get it right and apply the text and purpose of
>
the Establishment Clause to find Congress's addition of the words
"under
> God" in 1954 unconstitutional. First, while this case
arises in a state
> context, the addition of the words "under God"
were made by a statute
> passed by Congress, the core concern of the
First Amendment. Second,
> while adding such words may not directly
"establish" religion, the law
> is "respecting an establishment of
religion." The law declares that the
> official pledge of
allegiance to the United States requires a
> recognition that the
nation is "under God," which logically requires an
> affirmance that
God exists and that the nation is subject to God's will
> and
law. In other words, to pledge allegiance to the United States
in
> the only way recognized by the United States, one must state
that he/she
> believes in God and believes that the nation is
subject to God's law and
> will. Were such a statement
required as a qualification to any office
> of the United States, it
would almost assuredly violate the religious
> test prohibition in
Article VI. Thus, although we cannot require such a
>
statement of a candidate for national office, those who would uphold
the
> addition of the words "under God" in the pledge would require
it from
> anyone who wishes to pledge allegiance to the
nation. To require a
> person to confess to religious beliefs
in order to pledge allegiance to
> the nation is the essence of
"establishment." Moreover, the allowance
> of an
"affirmation," in lieu of an "oath," to support the Constitution
>
in Article VI (the Constitutionally required pledge of allegiance),
was
> specifically included to allow such a pledge to be made
without invoking
> the name of the deity. Third, the history of the
addition of the words
> "under God" reveals the intent of Congress
to declare by law that there
> is an identity between this nation's
goals and ideals and the will of
> God, an identity more recently
expressed by Chief Justice Moore in
> Alabama in explaining his
reason for placing the 10 Commandments in the
> rotunda of the state
Supreme Court building. To declare such an
> identity by law
is the epitome of "establishment." Anyone who wishes may
> say the
words "under God" between "one nation" and "indivisible," but
> for
Congress to require those words as a condition to pledging
>
allegiance to the nation is unconstitutional. Bill Funk Lewis &
Clark
> Law School
>
>
> Steve Wermiel
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