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Just
to clarify:
To
SB: Yes, I was addressing only the merits, not the standing issue, which
could end up being the area in which this case becomes
important.
To
RZ: I hope the Cubs do make it into Series, but I fear for them if they
face the Yankees. If it's a Cubs-Red Sox series, I'll be as split as a
Scalia-less Court!
DMW
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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