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I've posted to SCOTUSblog the respondent's
brief and some of the briefs for amici on behalf of the respondent, all
of which were filed yesterday, in No. 02-1624, Elk Grove Unified School
District v. Newdow, the case involving the constitutionality of including
the words "under God" in the Pledge of Allegiance in public primary and
secondary schools. See http://www.goldsteinhowe.com/blog/archive/2004_02_08_SCOTUSblog.cfm#107676634682834495.
The vast majority of the top-side briefs can be found on this
helpful page created by the Pew Forum on
Religion and Public Life.
Although many of the briefs are, in my humble but
not-impartial opinion, very good, I commend to you especially Doug Laycock's
brief on behalf of 32 Clergy and the Unitarian Universalist Ass'n:
http://www.goldsteinhowe.com/blog/files/newdow.laycock.pdf. The first two-thirds of Doug's brief are a powerful
argument that the recitation of the words "under God" in public schools is
unconstitutional, and, in particular, why the SG's counterargument -- that daily
recitation of those words is permissible because it is not
a “religious exercise” or the “profession of a religious belief,” but instead
merely an "acknowledgement" of historical fact, a "descriptive" statement "about
the Nation's historical origins, its enduring philosophy centered on the
sovereignty of the individual, and its continuing demographic character" -- is
not only mistaken, but also an argument that, if taken seriously, would
mean that state actors are asking millions of children to take the name of
the Lord in vain on a daily basis.
The final third of Doug's
brief is most interesting. In those pages, he implores the
Court, if it is committed to reach the merits and uphold the
constitutionality of "under God" in schools, to write a narrow, sui generis
opinion that will not threaten to undermine the Court's entire line of school
prayer cases. Doug then offers a test of five "factors," all of
which would have to be present, that the Court could identify as being the
necessary predicate for crafting an exception to its otherwise consistent
religion-in-school doctrine, in the event the Court decides (contra the
remainder of Doug's brief) to uphold the practice of having teachers lead
students in a daily religious
affirmation.
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