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
|
