New Pledge of Allegiance Case, and precential effect of Ninth Cir cuit's earlier Newdow decision

[Anthony Picarello]

I think the best explanation for the district judge's decision to rely
on the 9th Circuit opinion is his own (remarkably candid) explanation.
It appears in fn22, at the very end of the opinion.  For convenience,
I've cut and pasted it below:

 

22 This court would be less than candid if it did not

acknowledge that it is relieved that, by virtue of the disposition

above, it need not attempt to apply the Supreme Court's recently

articulated distinction between those governmental activities which

endorse religion, and are thus prohibited, and those which

acknowledge the Nation's asserted religious heritage, and thus

are permitted. As last terms cases, McCreary County v. ACLU, 125

S.Ct. 2722, 2005 WL 1498988 (2005) and Van Orden v. Perry, 125

S.Ct. 2854, 2005 WL 1500276 (2005) demonstrate, the distinction is

utterly standardless, and ultimate resolution depends of the

shifting, subjective sensibilities of any five members of the High

Court, leaving those of us who work in the vineyard without

guidance. Moreover, because the doctrine is inherently a boundaryless

slippery slope, any conclusion might pass muster. It might

be remembered that it was only a little more than one hundred ago

that the Supreme Court of this nation declared without hesitation,

after reviewing the history of religion in this country, that "this

is a Christian nation." Church of the Holy Trinity v. United

States, 143 U.S. 457, 471 (1892). As preposterous as it might

seem, given the lack of boundaries, a case could be made for

substituting "under Christ" for "under God" in the pledge, thus

marginalizing not only atheists and agnostics, as the present form

of the Pledge does, but also Jews, Muslims, Buddhists, Confucians,

Sikhs, Hindus, and other religious adherents who, not only are

citizens of this nation, but in fact reside in this judicial

district.

 

 

 

 

 

  _____  

From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of
ArtSpitzer at aol.com
Sent: Wednesday, September 14, 2005 8:10 PM
To: religionlaw at lists.ucla.edu
Subject: Re: New Pledge of Allegiance Case,and precential effect of
Ninth Cir cuit's earlier Newdow decision

 

Perhaps the real explanation for the district judge's statement about
being bound is that he wanted to do the right thing, but needed to place
the blame elsewhere.  Even life tenure doesn't solve all problems.

Art Spitzer

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