I am informed this morning by Bob Ritter, attorney for plaintiffs in the Newdow
challenge to Inaugural prayers and oath of office that the the:
clerk did not accept the case when I went to file it yesterday afternoon
because it was late in the afternoon (almost 4:00 p.m.) and some minor
On Monday, Michael Newdow filed a federal lawsuit seeking to enjoin the Chief
Justice from adding so help me God to the constituionally prescribed
Presidential oath when swearing in Barack Obama, and to prevent clergy from
offering prayers during the inaugural ceremony. Details with links
I can't see any way this survives a motion to dismiss based on standing. And
Newdow must know that.
Ed Brayton
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Friedman, Howard M.
Sent: Tuesday, December 30, 2008 12:31 AM
To: religionlaw
-To: Law Religion issues for Law Academics
religionlaw@lists.ucla.edu
To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu
Subject: Re: New Pledge of Allegiance Case,and precential effect of Ninth
Cir cuit's earlier Newdow decision
Date: Wed, 14 Sep 2005 20:43:34 -0400
Why
for Law Academics
religionlaw@lists.ucla.edu
To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu
Subject: Re: New Pledge of Allegiance Case,and precential effect of Ninth
Cir cuit's earlier Newdow decision
Date: Wed, 14 Sep 2005 20:43:34 -0400
Why is it inconsistent
, September 15, 2005 10:18 AM
Subject: Re: New Pledge of Allegiance Case,and precential effect of Ninth
Cir cuit's earlier Newdow decision
Yes, of course. But in that case -- and in light of the fact that the
*judgment* is not binding on future litigants, or on future courts -- what
be bound by it.
Best,
Stuart
From: [EMAIL PROTECTED]
To: [EMAIL PROTECTED],Law Religion issues for Law Academics
religionlaw@lists.ucla.edu
Subject: Re: New Pledge of Allegiance Case, and precential effect of Ninth
Cir cuit's earlier Newdow decision
Date: Thu, 15 Sep 2005 15:18:05 +
in the court of appeals'
prior decision in Newdow. But perhaps the district court
need not have worried about applying McCreary and van
Orden, or any of the other difficult-to-reconcile decisions of the
SCOTUS involving state religious _expression_ outside primary and
secondary schools. This case
.
The AP story says the district judge said that the Ninth Circuit's Newdow
decision was binding precedent. I thought that the Supreme Court's
reversal of the Ninth Circuit's decision, on standing grounds, would have
eliminated the precedential effect of the Ninth Circuit decision. Perhaps the
AP
. Cruz
Professor of Law
University of Southern California Law School
Los Angeles, CA 90089-0071
U.S.A.
On Wed, 14 Sep 2005, A.E. Brownstein wrote:
The story is correct. The Supreme Court did not vacate the Ninth Circuit's
decision in Newdow. It reversed it. The District Judge in the new case
I don't think it is binding as a technical matter, but practically speaking, if the 9th Circuit rules one way on the merits in one case, one would expect them to do so again. Since the S Ct did not rule on the merits, there is no binding US S Ct precedent and one looks for the best persuasive
If we are really making a practical prediction, why is this one
a sound one? Seems to me that much depends on the panel that the case
draws; that 3 of 28-odd judges split 2-1 in one direction doesn't tell
us much about whether a different 3 will go the same direction. The
refusal to
Judge Karlton reasons that there was Article III jurisdiction in the earlier
case, just not prudential standing. He then reasons that the prior Ninth
Circuit opinion remains good law except on the issue on which it was
reversed by the Supreme Court, namely prudential standing. He notes that the
I'm not sure Steve's right. There are two things the Ninth Circuit knows
now that it did not know when it decided the Newdow case. First, it knows
that Newdow was unable to persuade O'Connor on the merits. How many
government display or prayer cases get struck down on establishment
clause
: I'm not sure Steve's right. There are two things the Ninth Circuit knows now that it did not know when it decided the Newdow case. First, it knows that Newdow was unable to persuade O'Connor on the merits. How many government display or prayer cases get struck down on establishment clause grounds
New Pledge of Allegiance Case,and precential
effect of Ninth Cir cuit's earlier Newdow decisionWhat is
the best available authority on what the 9th circuit might decide? A
published decision on the merits. Even if it has been reversed on other
grounds.
While one could well get a diffe
I agree he should not have said he was bound by the Circuit. But, and here is where we disagree, I guess, I don't see the issue as a tabula rasa -- the 9th Circuit has spoken directly on this exact issue and I would respect that and not easily decide it as if it were a completely new issue. To
Severl folks in this thread are writing as if there
is some inherent, or consistent, "right" answer to the question of whether the
CTA9 merits decision in Newdow is "binding"on district courts
"within" that circuit -- or, presumably, on future Ninth Circuit p
The District Court opinion did not identify a Ninth Circuit rule of
precedent on this issue and seemed to be discussing the question as a
matter of general law. I don't know whether the kind of rule Marty
describes exists here.
I think Justice Steven's opinion in Newdow reads very much like
Perhaps the real explanation for the district judge's statement about being bound is that he wanted to do the right thing, but needed to place the blame elsewhere. Even life tenure doesn't solve all problems.
Art Spitzer
___
To post, send message to
ower courts, and
other panels, in future cases.
- Original Message -
From:
A.E.
Brownstein
To: Law Religion issues for Law
Academics
Sent: Wednesday, September 14, 2005 7:50
PM
Subject: Re: New Pledge of Allegiance
Case, and precential effect of Ninth Cir
,and precential effect of Ninth Cir cuit's earlier Newdow
decision
Perhaps the real explanation for the
district judge's statement about being bound is that he wanted to do the right
thing, but needed to place the blame elsewhere. Even life tenure doesn't
solve all problems.
Art Spitzer
I agree with Anthony that fear of McCreary
County likely led the court to take refuge in the court of appeals' prior
decision in Newdow. But perhaps the district court need not have
worried about applying McCreary and van Orden, or any of the
other difficult-to-reconcile decisions
Subject: Re: New Pledge of Allegiance
Case,and precential effect of Ninth Cir cuit's earlier Newdow decision
Perhaps the real explanation for the district
judge's statement about being bound is that he wanted to do the right thing,
but needed to place the blame elsewhere. Even life tenu
they think qualifies as "do[ing] the right thing".
Brad
- Original Message -
From: [EMAIL PROTECTED]
To: religionlaw@lists.ucla.edu
Sent: Wednesday, September 14, 2005 7:10 PM
Subject: Re: New Pledge of Allegiance Case,and precential effect of Ninth Cir cuit's ear
distinguishing myself from Tom Goldstein, who
on NPR today said that the district court just didn't understand that it
wasn't bound by [Newdow III] since the Supreme Court had reversed that
case. Of course, since he was doing commentary on the Roberts hearing, I
assume he had read neither the court's opinion
Ninth Cir cuit's earlier Newdow decision
Brad assumes that when I said the judge
"wanted to do
the right thing," I meant the politically right thing or the the right
thing by his personal lights. That's not at all what I meant, and I
would agree with him that a judge is no
To: Law Religion issues for Law Academics
Sent: 9/14/2005 8:00 PM
Subject: Re: New Pledge of Allegiance Case, and precential effect of Ninth
Cir cuit's earlier Newdow decision
I appreciate Art's clarification of what he meant. He's correct that I
understood his saying the judge wanted to do the right
of Allegiance Case, and precential effect
of NinthCir cuit's earlier Newdow decision
Let me recommend Howard Bashman's post on the precedent
issue at How
Appealing, http://legalaffairs.org/howappealing/. (Scroll down to
8:01 pm
9/14/05 post.) He presents arguments for the following
Doug's Harvard Comment on Newdow and
Davey is now available online at http://www.harvardlawreview.org/issues/118/1_laycock.pdf.
I haven't read it yet, but in light of Doug's amicus briefs in both cases (as
well as his contributions to this list regarding both of them), I'm willing to
wager
, that is.
-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED]
Sent: Friday, June 18, 2004 3:23
AM
To: [EMAIL PROTECTED]
Subject: Re: Justice Thomas in
Newdow
In a message dated 6/17/2004 8:20:09
PM Central Standard Time, [EMAIL PROTECTED] writes:
Whatever Madison's reasons
the Founders
intended-and it seems to be what the Court thought in Yoder, pace Welsh-Seeger.
Marc Stern
From:
[EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED]
Sent: Tuesday, June 22, 2004 2:10
PM
To: [EMAIL PROTECTED]
Subject: Re: Justice Thomas in
Newdow
In a message dated 6/21/2004 12:25:47 AM Eastern Daylight Time, [EMAIL PROTECTED] writes:
There's a difference between having a right and having that right recognized. When I queried the Elk Grove folks about how a student might opt out, they said no student was allowed out. The promised to get
In a message dated 6/21/2004 6:37:26 AM Central Standard Time, [EMAIL PROTECTED] writes:
I participated in a panel discussion for radio with the Superintendent from Elk Grove and he stated unequivocally and without hesitation that Elk Grove did not require students who were conscientiously
that they are so, even though the parties in a particular lawsuit have agreed to other facts to the contrary.
Perhaps I am wrong, but did not all the parties agree with the characterization of the circumstances in the original Newdow decision? That is, California requires a patriotic exercise
In a message dated 6/18/2004 11:38:07 AM Central Standard Time, [EMAIL PROTECTED] writes:
2. The framers may have intended to protect only Protestants, but the language they used protects all religion (why? suppose we discovered that Washington did not really consider Islam a religion).
It
In a message dated 6/20/2004 12:39:47 PM Eastern Daylight Time, [EMAIL PROTECTED] writes:
Perhaps I am wrong, but did not all the parties agree with the characterization of the circumstances in the original Newdow decision? That is, California requires a patriotic exercise, and Elk Grove's
In a message dated 6/17/2004 4:39:04 PM Central Standard Time, [EMAIL PROTECTED] writes:
However, the Pledge of Allegience--from which kids can opt
out--violates no one's free exercise.
I'm still looking for the process by which any kid in the Elk Grove school district in California can opt
In a message dated 6/17/2004 4:49:15 PM Eastern Daylight Time, [EMAIL PROTECTED] writes:
The Civil War Amendments rewrote the Constitution. People are entitled to protection against establishment period. Limiting the states is what happened with our second Constitution. Broadening the federal
I've kept a list of various authorities who have at least questioned whether
incorporating the Establishment Clause makes any logical sense. The
lunatic fringe certainly seems to include a lot of intelligent scholars:
Akhil Reed Amar, The Bill of Rights as a Constitution, 100 Yale L.J. 1131,
In a message dated 6/18/2004 3:26:39 AM Eastern Daylight Time, [EMAIL PROTECTED] writes:
I'm still looking for the process by which any kid in the Elk Grove school district in California can opt out of this state- and district-required exercise, short of suing. Is there really such an opt-out
1. Intentions both with respect to the
original meaning of establishment clause and the due process clause are
vague. I suspect no general consensus existed as to what the establishment
clause meant in 1791 (if the what theaverage member of a state legislature
would think the only good
In a message dated 6/18/04 5:02:57 AM Eastern Daylight Time,
[EMAIL PROTECTED] writes:
The "lunatic fringe" certainly seems to include a lot of intelligent scholars:
As human beings so frequently demonstrate, intelligence (is there a pun in here somewhere?) can certainly be misused in the
Sorry, Jim, but of course it is coercive to force an elementary or middle or high school student to publicly opt out of a REQUIREMENT.
It is not just evangelical Christians who have a hard time of it in school. Anyone who seeks to do something different does.
Steve
The Elk Grove School
essage-From:
[EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]
On Behalf Of [EMAIL PROTECTED]Sent: Friday, June 18, 2004 9:37
AMTo: [EMAIL PROTECTED]Subject: Re: Justice
Thomas in Newdow
In a message dated 6/18/04 5:02:57 AM Eastern Daylight
Time,[EMAIL PROTECTED] writes:The "lunatic fri
In a message dated 6/18/2004 11:11:58 AM Eastern Daylight Time,
[EMAIL PROTECTED] writes:
Thanks,
Jim. You just proved my argument. That YOU don't see the coercion
doesn't mean it doesn't exist. It merely shows that if you are a part of the
majority (I know, I know, "Define it" "OK,
One of my hobby horses, which I may have raised several years ago (sorry,
if I have) concerns late eighteenth/early nineteenth century claims that freedom
of religion mean no discrimination between Protestants (see Joseph Story, Daniel
Webster). Why is this off the table at present.
1.
In a message dated 6/18/04 11:46:29 AM Eastern Daylight Time, [EMAIL PROTECTED] writes:
unless you have been told, as I was, by a junior high school teacher, that I should not bring my preferred religious text to school for reading during free time, and unless you have been told, as I was, by my
and abused.
Bob O'Brien
- Original Message -
From:
[EMAIL PROTECTED]
To: [EMAIL PROTECTED]
Sent: Friday, June 18, 2004 12:27
PM
Subject: Re: Justice Thomas in
Newdow
In a message dated 6/18/2004 12:18:28 PM Eastern Daylight Time, [EMAIL PROTECTED] writes:
Everyone
In a message dated 6/18/2004 2:33:57 PM Eastern Daylight Time,
[EMAIL PROTECTED] writes:
She
asked one of the partners in the law firm whether he would be embarrassed if
she did not participate in the Pledge of Allegiance. A few days later
she was fired.
Of course, her firing from a
of tolerance
and acquiescence from the Newdow-types who consider belief in God harmful.
Take care,
Francis, with an i. :-)
On 6/18/04 11:22 AM, [EMAIL PROTECTED] [EMAIL PROTECTED] wrote:
In a message dated 6/18/04 11:42:37 AM Eastern Daylight Time,
[EMAIL PROTECTED] writes:
So, like the Christian who
PROTECTED]
Subject: Re: Justice Thomas in Newdow
In a message dated 6/18/2004 12:18:28 PM Eastern Daylight Time,
[EMAIL PROTECTED] writes:
Everyone notices when someone is gone for a particular ceremony --
every day. Or does not otherwise participate.
These may be facts that could be proven
Kurt,
Would it be fair to say that while that the principle of non-establishment
was still at issue in 1789 at the state level, the principle of generally
applicable free exercise rights (free exercise rights for everyone -- not
just Protestants.) was equally at issue at the state level. Your
Dear all,
I apologize in advance, if I missed the list's discussion of Justice
Thomas's views regarding the incorporation of the Establishment
Clause. For what it's worth, I've been surprised by the vigor with which
several prominent scholars have disapproved these views. Jack Balkin
bedrock. Still, is there a reason why we should not concede that he
is -- or, at least, MAY be -- correct?
Best,
Rick Garnett
The Civil War Amendments rewrote the Constitution. People are entitled
to protection against establishment period. Limiting the states is what
happened with our
The LA Times story is available on Westlaw for those who would
like to read it without giving their phone number and income to the LA
Times. Expletives deleted.
Obviously the way you would explain what is wrong with Thomas's
opinion on this list is different from how you would
To: Law Religion issues for Law Academics
Subject: Re: Justice Thomas in Newdow
The LA Times story is available on Westlaw for those who would
like to read it without giving their phone number and income to the LA
Times. Expletives deleted.
Obviously the way you would
Thomas that is consistent with
establishment applied to the states but without incorporating the
Establishment Clause. (I just read through his opinion in Newdow very
quickly; so I may be reading him wrong on this). Thomas seems to be saying
that state disestablishment can be gotten through
2:28 PM
To: 'Law Religion issues for Law Academics'
Subject: RE: Justice Thomas in Newdow
Isn't it the case that whether Thomas is correct or not
depends in part on whether only the text of the constitution
(or the text and original intent) is a relevant datum or
whether accumulated
Jamar
Sent: Thu 6/17/2004 1:48 PM
To: Law Religion issues for Law Academics
Subject: Re: Justice Thomas in Newdow
bedrock. Still, is there a reason why we should not concede that he
is -- or, at least, MAY be -- correct?
Best,
Rick Garnett
The Civil War Amendments rewrote the Constitution
]
Sent: Thursday, June 17, 2004 2:54 PM
To: Law Religion issues for Law Academics
Subject: RE: Justice Thomas in Newdow
It seems to me that Justice Thomas's position -- or for that
matter, the Chief's similar position in Wallace v. Jaffree in the
mid-1980s -- is eminently credible
Doug Laycock is right to suggest that the federalism case for the
establishment clause is at least as strong in regard to other rights
listed in the Bill. For example, when Congress passed the alien and
sedition acts, Madison argued that the acts, among other things,
violated the rights of
The Washington Post is reporting that all eight participating Justices
agreed that Newdow did not have standing.
David B. Cruz
Professor of Law
University of Southern California Law School
Los Angeles, CA 90089-0071
U.S.A.
___
To post, send message
Justice Stevens wrote the Opinion
of a five-Justice Court, reversing the decision of the U.S. Court of
Appeals for the Ninth Circuit on standing grounds. Chief
Justice Rehnquist and Justices O'Connor and Thomas each wrote opinions concurring in the judgment,
concluding that Newdow did have
Sent: Monday, June 14, 2004 1:36
PM
To: Law
Religion issues for Law Academics; David Cruz;
[EMAIL PROTECTED]
Subject: Re: The Merits in Newdow
Justice Thomas, by the way, would also hold that the
Fourteenth Amendment does not incorporate the Establishment Clause:
Quite simply
:
Marty Lederman
To: David Cruz ; [EMAIL PROTECTED] ; Law
Religion issues for Law Academics
Sent: Monday, June 14, 2004 11:56
AM
Subject: The Merits in Newdow
The collection of concurrences on the merits are
quite interesting. The Chief's opinion adopts the SG's argument --
s'
Sent: Monday, June 14, 2004 2:41 PM
Subject: RE: The Merits in Newdow
Why? It is Virginia that has set
up an establishment clause defense to the federal act. The Act itself purports
to protect Free Exercise rights and Thomas does not contend these are not
incorporated .And
://goldsteinhowe.com/blog/files/newdow.laycock.pdf.
Justice Thomas concludes -- correctly, in my view, see
http://www.goldsteinhowe.com/blog/files/Newdow%20Final%20Brief.pdf -- that if
Lee v. Weisman was correctly decided, then public schools may not lead
students in daily recitation of the words under
Mark apparently wanted to recollect what it's like
to take a law-school exam: He just finished parrying 26 Questions
(many of them with mulitple subparts!) on Newdow in one hour, in a
public QA on the Washington Post website:
http://discuss.washingtonpost.com/wp-srv/zforum/04
Is the transcript of the oral arguments in Newdow on
line yet? Does anyone have a link?
Cheers, Rick Duncan
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instantly recognize the name of the Law School.
At 03:17 PM 2/14/2004 -0500, you wrote:
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
I've posted to SCOTUSblogthe respondent's
briefand 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 "unde
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