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Thanks, I agree. Except I wish I were more confident about the Cubs
making it to the series.
RZ
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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