The Merits in Newdow

[Marty Lederman]

Justice Thomas, by the way, would also hold that the Fourteenth Amendment does not incorporate the Establishment Clause:  "Quite simply, the Establishment Clause is best understood as a federalism provision-it protects state establishments from federal interference but does not protect any individual right."  This suggests that Justice Thomas might be very sympathetic to the State of Virginia's federalism-based Establishment Clause argument in the (likely-to-be) upcoming case challenging the constitutionality of RLUIPA, Bass v. Madison.

----- Original Message ----- 
  From: Marty Lederman 
  To: David Cruz ; conlawprof at lists.ucla.edu ; Law & Religion issues for Law Academics 
  Sent: Monday, June 14, 2004 11:56 AM
  Subject: The Merits in Newdow


  The collection of concurrences on the merits are quite interesting.  The Chief's opinion adopts the SG's argument -- darn-near-preposterous, IMHO (and that of Justice Thomas!) -- that the Pledge is OK in schools because "under God" is "not endorsement of any religion," but instead "a simple recognition of the fact [that] '[f]rom the time of our earliest history our peoples and our institutions have reflected the traditional concept that our Nation was founded on a fundamental belief in God.'"  

  Justice O'Connor joins the Chief's opinion, but writes separately to suggest that the Pledge in schools is ok only because of a confluence of "four factors" that will virtually never again appear in combination in any other case.  This result derives directly from pages 24-29 of the amicus brief that Doug Laycock wrote:  http://goldsteinhowe.com/blog/files/newdow.laycock.pdf.

  Justice Thomas concludes -- correctly, in my view, see http://www.goldsteinhowe.com/blog/files/Newdow%20Final%20Brief.pdf -- that if Lee v. Weisman was correctly decided, then public schools may not lead students in daily recitation of the words "under God."  Thomas, however, would overrule Lee.



  ----- Original Message ----- 
  From: "Marty Lederman" <marty.lederman at comcast.net>
  To: "David Cruz" <dcruz at law.usc.edu>; <conlawprof at lists.ucla.edu>
  Sent: Monday, June 14, 2004 11:42 AM
  Subject: Links to Newdow Opinions


  > It appears that those links did not work.  All of the opinions can be found
  > here:
  > 
  > http://supct.law.cornell.edu:8080/supct/html/02-1624.ZS.html
  > 


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