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Supreme Court messes up Pledge of Allegiance case
The murky jurisprudence of the Establishment Clause becomes even murkier today with the Supreme Court’s weird non-decision in Elk Grove Unified School District v. Newdow.
The Supreme Court previously ruled in Wallace v. Jaffree, 472 U.S. 38 (1985), that a minute of silence in public schools in Alabama violated the Establishment Clause. If silence violates the Establishment Clause, how does a verbal affirmation that our nation is under God not violate the Establishment Clause?
In Lee v. Weisman, 505 U. S. 577 (1992), the Supreme Court ruled that a benediction given at a high school graduation ceremony violated the Establishment Clause.
I would also point out that it apparently violates the Establishment Clause for the Ten Commandments to appear in a state courtroom, even though no one is forced to read from the Commandments, and the people in the courtroom are adults and not impressionable children.
Today’s decision is a non-decision because five justices said that the federal courts had no standing to hear the case. Students of constitutional law know that the Supreme Court has a long tradition of not deciding controversial cases through the excuse of lack of standing. In the most infamous Supreme Court decision ever, the Dred Scott case, the Court ruled that it didn’t have any authority to adjudicate the case because the plaintiff lacked standing. [EDIT: I meant to say that the Court lacked juristictional grounds--the plaintiff did have "standing" because he had a personal stake in the matter, but the federal courts nevertheless had no authority under Article III to adjudicate the case. But the point was and still is that the Court didn't adjusticate the merits of the case.] This is a fact that most people who haven’t read the Dred Scott decision don’t realize. Even my textbooks in law school omitted this fact.
Chief Justice Rehnquist did a very good job of explaining why the majority’s decision that the plaintiff had no standing was stupid. I am in complete agreement with Rehnquist on this one. When I first heard about the decision, I thought that maybe there was some long established federal principle that a parent has no standing to sue on behalf of his child if he doesn’t have custody. But I learned that federal courts look to state law to determine this stuff. The courts in California conluded that Newdow, the plaintiff, had a legally recognized interest in his child’s upbringing, and therefore had standing to bring the case. This decision otherwise by the Supreme Court is just a big cop out.
So now we have a big mish-mosh of dicta that’s confusing to everyone. The Ninth Circuit says that the Pledge is unconstitutional. Five Supreme Court justices say there is no standing. Justice Scalia recused himself. Chief Justice Rehnquist says “under God” is okay because “our national culture allows public recognition of our Nation’s religious history and character.” Justice O’Connor says “under God” is okay because it’s “ceremonial Deism.”
Justice Clarence Thomas is the only one who makes any sense in today’s decision. He writes, “I conclude that, as a matter of our precedent, the Pledge policy is unconstitutional.” Thank you Justice Thomas for being the only member of the Court who has any honesty. With the Ninth Circuit having received so much flak for its decision that the Pledge of Allegiance is unconstitutional, people should take note that the Justice who is considered one of the Court’s most “conservative” members agrees that the Ninth Circuit decided the case correctly based on established precedent. (It should be noted that Justice Thomas would overturn the precedent and not apply the Establishment Clause to the states—a very interesting idea, but one that goes beyond the scope of this blog entry.)
Additional blogosphere commentary:
Professor Bainbridge
Poliblog
The Bonassus (suggests a political motivation for why the Justices didn't decide the merits of the case)
Outside the Beltway
Captain’s Quarters (happy that "under God" remains in the Pledge)
The Volokh Conspiracy (includes some commentary on Justice Thomas’s concurring opinion)
SCOTUSblog (detailed commentary)
Staunch Moderate
INDC Journal (argues in favor of "under God" being removed from Pledge)
posted Monday, June 14, 2004
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9 Comments:
By
Xrlq:
Perhaps you'd care to explain why you think Dred Scott v. Sandford had anything to do with the standing doctrine? I re-read the case, and did not find a single reference to "standing," to "cases or controversies," or to Article III at all. I'm not even sure how the standing doctrine could have applied there, as Mr. Scott was a slave, suing for his own freedom. He wasn't asserting anyone else's rights, as Michael Newdow did in this case.
posted at 6/15/2004 2:59 AM
By
Calico Cat:
Chief Justice Taney held that the plaintiff in Dredd Scott wasn't a citizen of one of the United States, and therefore the federal courts had no jurisdiction to hear the case.
Dredd Scott is a case that's unfairly criticized anyway. Taney's opinion is very eloquent and shows sympathy to the plight of the slaves. I'm not sure what people expected the Supreme Court to do. Slavery was, most unfortunately, specifically allowed under the original Constitution. Only a Civil War was able to bring about its abolition.
posted at 6/15/2004 9:53 AM
By
brando:
I find this whole story a remarkable outrage. I am glad the Supreme Court found some way to toss this mess out. The real story here is THEIR IS A LITTLE GIRL INVOLVED HERE !!!!! Where the hell were the all adults along the way here. Consumed in some sort of self serving ideological fog?
The father's time would be way better spent taking his daughter on a few "dates with dad." I suspect this never really entered his head. In my world, loving is the willingness to put others first. This guy made his daughter a sacrificial lamb! Where were the other adults? This reminds me of the stories where people are mugged and raped with a series of on lookers watched passively. Remarkably, it got all the way to the Supreme Court before an adult stepped in on this girls behalf.
Shame on all of them. Shame on all of us!
As to the issue regarding the wording of the pledge. It seems to me this could be resolved by reasonable adults on their own if they truly cared that much.
Taking a deep breath..........
Brando
http://brandotalk.blogspot.com/
posted at 6/15/2004 4:44 PM
By
Calico Cat:
These types of cases require the legal fiction that the plaintiff have a direct interest in the case. So a parent is the only one who would have standing to bring such a case.
There is no evidence that Newdow is a bad parent or he's neglecting his daughter.
Just because you have a child doesn't mean your not allowed to believe in any causes or pursue activities other than raising her.
There's nothing I know about Newdow that causes me not to respect him. He has a principle that he's fighting for, that should be admired.
posted at 6/15/2004 7:35 PM
By
brando:
With all due respect. You would do that to your daughter?...I think you might consider what her life has been like. The brunt of gossip, torn betwen two fighting parents, dragged into something by a part time parent. Life is tough enough.
As you are likely aware ,her mother has objected to all this.This man has an adgenda that he uses his daughter as a tool for forward . How can this posably be good for the child ? This is his selfishness and has nothing to do with her best interest.
posted at 6/15/2004 7:56 PM
By
Xrlq:
I think you're reaching, big time. Dred Scott was incorrectly decided on the merits; it wasn't kicked because the wrong plaintiff was before the court. Thus, it has absolutely nothing to do with the standing doctrine.
You're also misstating the standing doctrine as applied to this case. No one is arguing that parents lack standing to sue on behalf of their children. The issue here was whether a noncustodial parent, who had no right to control his daughter's education, can nevertheless sue in federal court to enforce the rights he doesn't have.
As to Newdow's parenting style, I think he can and should be condemned for using his daughter as a pawn in this game. If he wants to get cute with the standing doctrine, let him sue the school district he pays taxes to. Or hell, he's an attorney; let him represent a custodian parent (or two) who really want their son/daughter to learn the 1942-54 version of the Pledge rather than the one we've had for half a century. But dragging his own daughter into the mess, over the objections of both her and her mother, suggests that Newdow cares more about his ego than anything else.
posted at 6/15/2004 8:20 PM
By
Calico Cat:
"As to Newdow's parenting style, I think he can and should be condemned for using his daughter as a pawn in this game. If he wants to get cute with the standing doctrine, let him sue the school district he pays taxes to."
As an attorney, he probably figured that basing standing on being a parent had the best chance of being a go. In general, merely being a taxpayer doesn't give you standing. I think there are some specific exceptiont that might apply to First Amendment cases, but Newdow seems like a knowledgeable attorney, I'm sure he did his research.
And he's not using his daughter as a "pawn," the suit is in his name, his daughter is barely involved in it if at all (I'm not sure if she had to visit the District Court or not--but there's nothing wrong with showing your kid what a courtroom is like).
I think that a lot of the animosity towards Newdow is because he's an atheist and no other reason. Which is exactly why he has to fight for the rights of atheists.
posted at 6/16/2004 12:35 PM
By
Xrlq:
"As an attorney, he probably figured that basing standing on being a parent had the best chance of being a go."I'm sure he did, which explains why he intentionally misled the District Court and the Ninth Circuit Court of Appeal to believe he had joint custody of his daughter. Only later, after Sandra Banning went public, were the pleadings amended to reflect that Newdow was suing on behalf of himself rather than asserting parental rights which he didn't have.
Also, it's a tad misleading to describe Newdow as though he were a seasoned lawyer. In fact, at the time of the Ninth Circuit's infamous ruling (6/26/02), he wasn't an attorney at all."In general, merely being a taxpayer doesn't give you standing. I think there are some specific exceptiont that might apply to First Amendment cases, but Newdow seems like a knowledgeable attorney, I'm sure he did his research."The rule I recall from law school is that taxpayers generally have standing only to challenge the legality of the tax itself, and not of the expenditure. However, courts have carved out an exception where, as here, the expenditure is alleged to violate the Establishment Clause. So to deny him taxpayer standing, the court would have to conclude that reciting the Pledge doesn't cost anything, which is debatable. That's why I incorrectly predicted in March that Newdow would ultimately prevail on standing, not as a parent, but as a taxpayer/heckler.
"I think that a lot of the animosity towards Newdow is because he's an atheist and no other reason."You may be right as to some individuals, but as far as I can tell, most of the animosity, mine included (I'm an agnostic BTW) are directed at his disdain for the democratic process. That he initially misrepresented his daughter's custodial status and brought the suit over the objection of the custodial mother, with apparent disregard of the best interests of the very daughter he was pretending to represent, is only icing on the cake.
He's also an arrogant putz, judging by this statement he made shortly before the oral statements:
"I will win because I'm right. I have standing, and this thing violates the Establishment Clause. The question is, will it be 8 to nothing or 6 to 2."I guess he was right about the numbers; it was 8 to nothing. But what kind of attorney makes such an idiotic statement as "I will win because I'm right?" I wouldn't want someone like that representing my legal interests. Would you?
I submit that contrary to your claim, the only reason Newdow is not universally hated is because he happens to be pushing a political (oops, I forgot, "constitutional") agenda that many atheists support.
posted at 6/16/2004 2:08 PM
By
GirriG:
Having gone through this in practice and not in the abstract...
My step-daughter did not want to make the Pledge of Allegiance when she was about 15. She was suspended from HS... It took threats of law suits and help from the ACLU to get her back into classes after 3 months. Her objection was that she was not old enough to commit to an oath or to a God she did not believe in. A lot of that was her mother's thinking, but I fundamentally agree with it.
Someone posted a comment that Newblod is using his daughter as a pawn for his ideology. If that's true then then why isn't the converse recognized--making kids pledge is a merely indoctrinating them with another ideology. The schools are making kids pawns for their particular ideology.
If we want to argue the merits of which ideology should be indoctrinated then state the argument as such. Saying the father is being ideological and avoiding the fact that patriotism and idolatry are the status quo belief system is a poor-ass defense.
I've grown up in countries where such oaths were mandated and regarded as meaningless and to be despised. A large part of my decision to become an American was based on the promise of freedom, and it's sad that we indoctrinate kids with blind obedience and God and not make them true citizens who hold their leaders accountable.
The Supreme Court copped out of making a real decision and let stand a status quo that is pathetic in terms of citizen autonomy and diverse opinions within the population. They have ignored education in favor of a particular view of citizenship. H.L. Mencken best describe what the Supreme Court wants to perpetuate: "The average citizen of a democracy is a goose-stepping ignoramous"
posted at 6/17/2004 11:48 PM
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