Today, the U.S. Supreme Court heard oral arguments in the case of Elk Grove Unified School District v. Newdow. In that case, the 9th Circuit Court of Appeals proclaimed the Pledge of Alegiance to be an unconstitutional violation of the Establishment Clause.
I have long held that the Supreme Court has ceased to have any moral authority on Establishment Clause matters do to its many opinions that flatly contradict each other, and its refusal to grant cert in many cases that contradict many of its previous rulings.
For an extended (though by no means complete) discussion of my views in this matter, see here, and here (and be sure to read the comments section as well to read the full debate that was engaged in at the time).
The Newdow case will likely be an insult as well - no matter how the Supreme Court eventually rules.
Like many, I thought the notion of declaring the Pledge to be unconstitutional was extremely silly (to put it mildly).
However, unlike many others, I do not blame the 9th Circuit for their ruling. The proper blame belongs
on the Supreme Court.
In 2000, the Supreme Court stated that it was unconstitutional to hold a pray at the start of a high school football game (known as the "Santa Fe" decision).
If that is true, then clearly it is unconstitutional to say the Pledge. That's a no-brainer folks. The 9th Circuit was just following the inescapable logic of the Supreme Court.
Does this mean that I want the Pledge to be declared unconstitutional? Hell no!
It means that I want "Santa Fe" overturned.
But I guarantee you that the Supreme Court won't do that. They will likely pull their usual B.S. tricks with Establishment Clause cases and rule in favor of keeping the Pledge without overturning "Santa Fe" despite the fact that the two decisions would flatly contradict each other.
Perhaps they will simple ignore "Santa Fe" as they often do with the Lemon v. Kurtzman case which has been contradicted several times but never overruled.
If they don't ignore "Santa Fe", then they will split the finest legal hairs possible in order to "reconcile" the cases. Perhaps they will suggest that "Under God" is a general declaration that doesn't amount to an actual prayer. Perhaps they will suggest that a principal saying "Under God" has a secular effect as opposed to a priest saying it. It will be some nonsense like that which the Court will use to rationalize its decision.
Either way the contradictions will continue to multiply and we as a nation will be stuck with an Establishment Clause jurisprudence that has no rational consistency but is rather resolved on a case-by-case basis based on the personal whims and religious biases of nine people.
It is an utter travesty.
But the analysis above will only hold if the Court rules on the merits of the case. If I had to bet, I'd say they will rule that the father had no standing to sue on behalf of a daughter that he doesn't have complete custody of and whose mother says she has no problem saying the Pledge. (MSNBC seems to be making the same prediction.)
But courts have often used standing as a flexible judicial doctrine in order to decide cases that they would to weigh in on while conveniently disposing of other of hot-potato issues that they would rather ignore rather than settle.
I wouldn't think that the father has standing in this case. But then I could never understand why it is people had standing to challenge a Ten Commandments sculpture on state grounds simply because they were offended by it. It seems no different than being offended that your country sends tax money to countries that you find repulsive. And yet there is still no general "taxpayer" standing. If someone can simply be offended by a sculpture and then have standing to remove it, why can't someone simply be offended by the fact that others are being taught to say the Pledge and also have standing to sue?
Just another example of the muddled thinking of the federal courts when it comes to Establishment Clause issues.
Final note - Justice Scalia has recused himself from this case for criticizing the 9th Circuit's decision earlier. I find Scalia to be an honorable Justice, but I doubt that he would have so readily stepped down unless he was confident that the other Justices would find a way to resolve or dispose of this case without banning the Pledge.
Posted by Justin Levine at March 24, 2004 03:03 AM | TrackBackJustin,
As I posted yesterday on my own blog, I agree that the case will likely be rejected on standing grounds. And justly so.
I agree with your other comments as well. Nice post, as usual.
Posted by: Patterico at March 24, 2004 06:52 PM (Permalink)Goldstein, Howe, and Assoc., the nation's only Supreme Court-exclusive law firm, believes otherwise: they predict that the court will find standing (on the basis that the Newdow has a right to infirm beliefs on his daughter, and that it isn't the state's place to do so) but will oveturn the decision 6-1 or 5-2. I am curious as to why you want Santa Fe overturned, do you have a comment on this that you can link me to?
Posted by: Marcus Kellis at March 24, 2004 07:05 PM (Permalink)I saw that prediction from Goldstein Howe on their blog Marcus.
They seem to be in the minority as to their prediction, but since they are very familiar with the Supreme Court, it's hard to dismiss them. I admit that nothing is for sure in this regard.
As to your "Santa Fe" question: I don't have a link to comments on that case specifically, but my links within the original post here will bring you to my problem with Establishment Clause jurisprudence generally.
I want to see Santa Fe overturned because the decision compells erasing almost all vestiges of religious expression in public venues that have tangential relationships with government and I don't feel that such actions would be in keeping with either what the Constitution says or the traditions of this country (and in fact would likely be an active tumor on the First Amendment since it would actually supress speech and free association in many instances).
To put it more simply - If a ruling states that someone can not lead people in voluntary prayer before a high school football game, then it seems quite obvious that the Pledge must also be found to be unconstitutional. I don't think that this is a radical conclusion. In fact I don't see how you escape such logic.
My biggest wish is for CONSISTENCY in Establishment Clause jurisprudence. Even though I would like to see "Santa Fe" overturned, I would rather that the Court uphold it and also find the Pledge unconstitutional rather than say that the Pledge is constitutional but that "Santa Fe" remains good law.
That way, Congress and the people will know how to shape the debate in terms of proposing Amendments to overturn the Court's decisions if there is enough demand for such.
But the way things are right now, Justices split infinitely-fine hairs in order to justify contradictory outcomes. I don't believe you can split hairs in Constitutional analysis. The Constitution should only provide broad bottom-line rules that should be equally applied to a wide variety of human interactions.
I could go on for quite some time fleshing out my reasoning on this, but that is it in a nutshell. (Refer to the link in this post which shows my extended discussion on this philosophy in regards to the Ten Commandments display controversey.)
Posted by: Justin Levine at March 24, 2004 10:29 PM (Permalink)