Re: Justices Take Case on Pledge of Allegiance's 'God' Reference
Title: Message
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. ZietlowProfessor of Law University of Toledo
College of Law (419) 530-2872
[EMAIL PROTECTED]
-Original Message-From: Eastman, John
[mailto:[EMAIL PROTECTED]Sent: Tuesday, October 14, 2003 5:56
PMTo: [EMAIL PROTECTED]Subject: Re: Justices
Take Case on Pledge of Allegiance's 'God' Reference
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
-Original Message-From: Marty Lederman
[mailto:[EMAIL PROTECTED] Sent: Tuesday, October 14,
2003 2:49 PMTo: [EMAIL PROTECTED]Subject:
Re: Justices Take Case on Pledge of Allegiance's 'God'
Reference
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
intoday's denials and singlegrant,is the school board's
policy, not the federal statute.
- Original Message -
From: "Eastman, John" [EMAIL PROTECTED]
To: [EMAIL PROTECTED]
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 pu
Re: Justices Take Case on Pledge of Allegiance's 'God' Reference
Title: Message
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 Soxlose,
Yanks win the Series. Can't say I'm happy about any of
this.
David
M. Wagner
Regent
University School of Law
-Original Message-From: Discussion list
for con law professors [mailto:[EMAIL PROTECTED] On Behalf Of
Zietlow, Rebecca E.Sent: Wednesday, October 15, 2003 10:03
AMTo: [EMAIL PROTECTED]Subject: Re: Justices
Take Case on Pledge of Allegiance's 'God' Reference
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. ZietlowProfessor of Law University of
Toledo College of Law (419) 530-2872
[EMAIL PROTECTED]
-Original Message-From: Eastman, John
[mailto:[EMAIL PROTECTED]Sent: Tuesday, October 14, 2003 5:56
PMTo: [EMAIL PROTECTED]Subject: Re:
Justices Take Case on Pledge of Allegiance's 'God'
Reference
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
-Original Message-From: Marty
Lederman [mailto:[EMAIL PROTECTED] Sent: Tuesday,
October 14, 2003 2:49 PMTo:
[EMAIL PROTECTED]Subject: Re: Justices Take Case on
Pledge of Allegiance's 'God' Reference
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
intoday's denials and singlegrant,is the school board's
policy, not the federal statute.
- Original Message -
From: "Eastman, John" [EMAIL PROTECTED]
To: [EMAIL PROTECTED]
Sent: Tuesday, October 14, 2003 5:35
PM
Re: Justices Take Case on Pledge of Allegiance's 'God' Reference
The only thing I'd say about this is that I wouldn't count any of the Fab Four as sure votes for the plaintiff on the standing question. At 03:33 PM 10/15/2003 -0400, you wrote: 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 -Original Message- From: Discussion list for con law professors [mailto:[EMAIL PROTECTED]] On Behalf Of Zietlow, Rebecca E. Sent: Wednesday, October 15, 2003 10:03 AM To: [EMAIL PROTECTED] Subject: Re: Justices Take Case on Pledge of Allegiance's 'God' Reference 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] -Original Message- From: Eastman, John [mailto:[EMAIL PROTECTED]] Sent: Tuesday, October 14, 2003 5:56 PM To: [EMAIL PROTECTED] Subject: Re: Justices Take Case on Pledge of Allegiance's 'God' Reference 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 -Original Message- From: Marty Lederman [mailto:[EMAIL PROTECTED]] Sent: Tuesday, October 14, 2003 2:49 PM To: [EMAIL PROTECTED] Subject: Re: Justices Take Case on Pledge of Allegiance's 'God' Reference 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 - From: Eastman, John [EMAIL PROTECTED] To: [EMAIL PROTECTED] 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
Re: Justices Take Case on Pledge of Allegiance's 'God' Reference
Title: Message
Thanks, I agree. Except I wish I were more confident about the Cubs
making it to the series.
RZ
-Original Message-From: David M Wagner
[mailto:[EMAIL PROTECTED]Sent: Wednesday, October 15, 2003 3:33
PMTo: [EMAIL PROTECTED]Subject: Re: Justices
Take Case on Pledge of Allegiance's 'God' Reference
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
Soxlose, Yanks win the Series. Can't say I'm happy about any of
this.
David M. Wagner
Regent University School of Law
-Original Message-From: Discussion
list for con law professors [mailto:[EMAIL PROTECTED] On
Behalf Of Zietlow, Rebecca E.Sent: Wednesday, October 15,
2003 10:03 AMTo: [EMAIL PROTECTED]Subject:
Re: Justices Take Case on Pledge of Allegiance's 'God'
Reference
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. ZietlowProfessor of Law University of Toledo College of Law (419) 530-2872 [EMAIL PROTECTED]
-Original Message-From: Eastman, John
[mailto:[EMAIL PROTECTED]Sent: Tuesday, October 14, 2003
5:56 PMTo: [EMAIL PROTECTED]Subject: Re:
Justices Take Case on Pledge of Allegiance's 'God'
Reference
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
-Original Message-From: Marty
Lederman [mailto:[EMAIL PROTECTED] Sent: Tuesday,
October 14, 2003 2:49 PMTo:
[EMAIL PROTECTED]Subject: Re: Justices Take Case
on Pledge of Allegiance's 'God' Reference
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 rema
Re: Justices Take Case on Pledge of Allegiance's 'God' Reference
I seem
to recall that the Court, or some court, head a case challenging the "In God we
Trust" motto on US money, and of course upholding it. Is my recollection
correct? And, am I correct that in favor of"God" in the pledge of
allegiance as not establishment of religion is that it's not really considered
to be a religious endorsement, just as using US money is not a religious
endorsement?
-Original Message-From: Sam Bagenstos
[mailto:[EMAIL PROTECTED]Sent: Wednesday, October 15, 2003
4:29 PMTo: [EMAIL PROTECTED]Subject: Re:
Justices Take Case on Pledge of Allegiance's 'God'
ReferenceThe only thing I'd say about this is that I
wouldn't count any of the "Fab Four" as sure votes for the plaintiff on the
standing question. At 03:33 PM 10/15/2003 -0400, you wrote:
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.
WagnerRegent University
School of Law
-Original Message-
From: Discussion list for con law professors [mailto:[EMAIL PROTECTED]] On Behalf Of
Zietlow, Rebecca E.
Sent: Wednesday, October 15, 2003 10:03 AM
To: [EMAIL PROTECTED]
Subject: Re: Justices Take Case on Pledge of Allegiance's 'God'
Reference
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]
-Original Message-
From: Eastman, John [mailto:[EMAIL PROTECTED]]
Sent: Tuesday, October 14, 2003 5:56 PM
To: [EMAIL PROTECTED]
Subject: Re: Justices Take Case on Pledge of Allegiance's 'God'
Reference
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
-Original Message-
From: Marty Lederman [mailto:[EMAIL PROTECTED]]
Sent: Tuesday, October 14, 2003 2:49 PM
To: [EMAIL PROTECTED]
Subject: Re: Justices Take Case on Pledge of Allegiance's 'God'
Reference
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
Justices Take Case on Pledge of Allegiance's 'God' Reference
Here's the introduction of an associated press story: Justices Take Case on Pledge of Allegiance's 'God' Reference By THE ASSOCIATED PRESS Published: October 14, 2003 WASHINGTON -- The Supreme Court said Tuesday it will decide whether the Pledge of Allegiance recited by generations of American schoolchildren is an unconstitutional blending of church and state. The case sets up an emotional showdown over God in the public schools and in public life. It will settle whether the phrase one nation under God will remain a part of the patriotic oath as it is recited in most classrooms. . . . . . Dan Conkle ** Daniel O. Conkle Professor of Law Indiana University School of Law Bloomington, Indiana 47405 (812) 855-4331 fax (812) 855-0555 e-mail [EMAIL PROTECTED] **
Re: Justices Take Case on Pledge of Allegiance's 'God' Reference
Be curious to see the difference in attitudes about whether a) a pledge that has been recited by generations of school children is unconstitutional and b) a pledge that has been recited since the 1950s is unconstitutional (two generations by my count). MAG [EMAIL PROTECTED] 10/14/03 11:12AM Here's the introduction of an associated press story:Justices Take Case on Pledge of Allegiance's 'God' ReferenceBy THE ASSOCIATED PRESSPublished: October 14, 2003WASHINGTON -- The Supreme Court said Tuesday it will decide whether thePledge of Allegiance recited by generations of American schoolchildrenis an unconstitutional blending of church and state.The case sets up an emotional showdown over God in the public schoolsand in public life. It will settle whether the phrase "one nation underGod" will remain a part of the patriotic oath as it is recited in mostclassrooms.. . . . .Dan Conkle**Daniel O. ConkleProfessor of LawIndiana University School of LawBloomington, Indiana 47405(812) 855-4331fax (812) 855-0555e-mail [EMAIL PROTECTED]**
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
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
Re: Justices Take Case on Pledge of Allegiance's 'God' Reference
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 intoday's denials and singlegrant,is the school board's policy, not the federal statute. - Original Message - From: "Eastman, John" [EMAIL PROTECTED] To: [EMAIL PROTECTED] 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 cann
Re: Justices Take Case on Pledge of Allegiance's 'God' Reference
Title: Message 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 -Original Message-From: Marty Lederman [mailto:[EMAIL PROTECTED] Sent: Tuesday, October 14, 2003 2:49 PMTo: [EMAIL PROTECTED]Subject: Re: Justices Take Case on Pledge of Allegiance's 'God' Reference 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 intoday's denials and singlegrant,is the school board's policy, not the federal statute. - Original Message - From: "Eastman, John" [EMAIL PROTECTED] To: [EMAIL PROTECTED] 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 S
