The Merits in Newdow

[marc stern]

Why? It is Virginia that has set up an establishment clause defense to the
federal act. The Act itself purports to protect Free Exercise rights and
Thomas does not contend these are not incorporated .And Thomas ash also
joined opinions suggesting that what is permitted accommodation is not
necessarily forbidden by the Establishment Clause. The prisoner plaintiff(
respondent)is not contending that Virginia's' limited accommodation policy
establishes religion by preferring main line faiths.

Marc Stern

  _____  

From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Monday, June 14, 2004 1:36 PM
To: Law & Religion issues for Law Academics; David Cruz;
conlawprof at lists.ucla.edu
Subject: Re: The Merits in Newdow

 

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 <mailto:marty.lederman at comcast.net>  Lederman 

To: David Cruz <mailto:dcruz at law.usc.edu>  ; conlawprof at lists.ucla.edu ; Law
<mailto:religionlaw at lists.ucla.edu>  & 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" < <mailto:marty.lederman at comcast.net>
marty.lederman at comcast.net>

To: "David Cruz" < <mailto:dcruz at law.usc.edu> dcruz at law.usc.edu>; <
<mailto:conlawprof at lists.ucla.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>
http://supct.law.cornell.edu:8080/supct/html/02-1624.ZS.html
> 


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