USSC reject POA case

[strandinthewind]

I believe the correct saying is "I wouldn't tough that with a 10 foot pole" :laugh: :cool: Actually, if the father does not have standing to speak for his cild, then the Court correctly rejected the case without addressing the merits.

http://www.cnn.com/2004/LAW/06/14/scotus.pledge.case.ap/index.html

Monday, June 14, 2004 Posted: 10:38 AM EDT (1438 GMT)

WASHINGTON (AP) -- The Supreme Court at least temporarily preserved the phrase "one nation, under God," in the Pledge of Allegiance Monday, ruling that a California atheist could not challenge the patriotic oath.

The procedural ruling did not directly address whether the pledge recited by generations of American schoolchildren is an unconstitutional blending of church and state.

The court said the atheist could not sue to ban the pledge from his daughter's school and others because he did not have legal authority to speak for her.

The father, Michael Newdow, is in a protracted custody fight with the girl's mother. He does not have sufficient custody of the child to qualify as her legal representative, eight members of the court said. Justice Antonin Scalia did not participate in the case.

The case is Elk Grove Unified School District v. Newdow, case no. 02-1624.

[strandinthewind]

from the nytimes:

Supreme Court Case on Pledge Is Dismissed on Technicality
By THE ASSOCIATED PRESS

Published: June 14, 2004

WASHINGTON -- The Supreme Court at least temporarily preserved the phrase "one nation, under God," in the Pledge of Allegiance, ruling Monday that a California atheist could not challenge the patriotic oath while sidestepping the broader question of separation of church and state.

The decision leaves untouched the practice in which millions of schoolchildren around the country begin the day by reciting the pledge.

The court said the atheist could not sue to ban the pledge from his daughter's school and others because he did not have legal authority to speak for her.

The father, Michael Newdow, is in a protracted custody fight with the girl's mother. He does not have sufficient custody of the child to qualify as her legal representative, eight members of the court said. Justice Antonin Scalia did not participate in the case.

"When hard questions of domestic relations are sure to affect the outcome, the prudent course is for the federal court to stay its hand rather than reach out to resolve a weighty question of federal constitutional law," Justice John Paul Stevens wrote for the court.

Chief Justice William H. Rehnquist agreed with the outcome of the case, but still wrote separately to say that the Pledge as recited by schoolchildren does not violate the Constitution. Justices Sandra Day O'Connor and Clarence Thomas agreed with him.

The high court's lengthy opinion overturns a ruling two years ago that the teacher-led pledge was unconstitutional in public schools. That appeals court decision set off a national uproar and would have stripped the reference to God from the version of the pledge said by about 9.6 million schoolchildren in California and other western states.

The case involved Newdow's grade school daughter, who like most elementary school children, hears the Pledge of Allegiance recited daily.

The First Amendment guarantees that government will not "establish" religion, wording that has come to mean a general ban on overt government sponsorship of religion in public schools and elsewhere.

The Supreme Court has already said that schoolchildren cannot be required to recite the oath that begins, "I pledge allegiance to the flag of the United States of America."

The court has also repeatedly barred school-sponsored prayer from classrooms, playing fields and school ceremonies.

The 9th U.S. Circuit Court of Appeals said the language of the First Amendment and the Supreme Court's precedents make clear that tax-supported schools cannot lend their imprimatur to a declaration of fealty of "one nation under God."

The Bush administration, the girl's school and Newdow all asked the Supreme Court to get involved in the case.

The administration had asked the high court to rule against Newdow, either on the legal question of his ability to sue or on the constitutional issue. The administration argued that the reference to God in the pledge is more about ceremony and history than about religion.

The reference is an "official acknowledgment of our nation's religious heritage," similar to the "In God We Trust" stamped on coins and bills, Solicitor General Theodore Olson argued to the court.

It is far-fetched to say such references pose a real danger of imposing state-sponsored religion, Olson said.

Newdow claims a judge recently gave him joint custody of the girl, whose name is not part of the legal papers filed with the Supreme Court.

The child's mother, Sandra Banning, told the court she has no objection to the pledge. The full extent of the problems with the case was not apparent until she filed papers at the high court, Stevens wrote Monday.

Newdow holds medical and legal degrees, and says he is an ordained minister. He argued his own case at the court in March.

The case began when Newdow sued Congress, President Bush and others to eliminate the words "under God." He asked for no damages.

The phrase "under God" was not part of the original pledge adopted by Congress as a patriotic tribute in 1942, at the height of World War II. Congress inserted the phrase more than a decade later, in 1954, when the world had moved from hot war to cold.

Supporters of the new wording said it would set the United States apart from godless communism.

The case is Elk Grove Unified School District v. Newdow, 02-1624.

[dissention]

I believe the correct saying is "I wouldn't tough that with a 10 foot pole" :laugh: :cool:

:lol: :lol: :lol:

I can't be getting that predictable, dammit!

[strandinthewind]

:lol: :lol: :lol:

I can't be getting that predictable, dammit!

LOL - I think it could be. This case was interesting to me because the fundamental basis for putting "under God" in the POA (to stop Godless Communism) in the 50's is no longer applicable, e.g. the USSR has fallen and China essentially is a reformed Communistic state now that the highly capitalistic Hong Kong is part of China, etc. So, from that POV the stated reason for "under God" no longer applies.

But, a case could be made that the phrase "under God" hardly rises to the level of establishing a religion, which is prohibited by the First Amendment. Moreover, the Court has already held no citizen can compelled to say the POA essentially so that the govt. is not establishing a religion. So, the Plaintiff in this case probably would have failed from that POV. His argument that his kid should not have to listen to it and that listening to it violated the establishment clause is interesting, but probably a bit too tenuous IMO.

In the end, I think they should take it out because its stated need no longer applies and it is a lie. As long as there are atheists, we most certainly are not one nation under God :shrug: Plus, the religious right will now bask in the glow of this victory and use this in an attempt to justify using other seemingly innocuous religious images and sayings to assert control over the masses.

[strandinthewind]

For those interested, www.cnn.com has a timeline for the POA:

Here is the first date:

1892

The pledge, written by socialist editor and clergyman Francis Bellamy, debuts September 8 in the juvenile periodical The Youth's Companion. He wants the words to reflect the views of his cousin, Edward Bellamy, author of "Looking Backward" and other socialist utopian novels. It reads: "I pledge allegiance to my Flag and the Republic for which it stands; one nation indivisible, with liberty and Justice for all."

Source: The Associated Press and Encyclopedia Britannica Inc.

[strandinthewind]

8 Justices Block Effort to Excise Phrase in Pledge

June 15, 2004
By LINDA GREENHOUSE


WASHINGTON, June 14 - An inconclusive decision by the
Supreme Court on Monday left "under God" in the Pledge of Allegiance while keeping the issue alive for possible resolution in a future case.

All eight justices who took part in the case agreed that the federal appeals court in California ruled incorrectly last year when it held, in a lawsuit brought against a local school district by the atheist father of a kindergarten student, that the reference to God turned the daily recitation of the pledge into a religious exercise that violated the separation of church and state.

But in voting to overturn that decision, only three of the justices expressed a view on the merits of the case. With each providing a somewhat different analysis, Chief Justice William H. Rehnquist, Justice Sandra Day O'Connor and Justice Clarence Thomas all said the pledge as revised by Congress exactly 50 years ago was constitutional.

The law adding "under God" as an effort to distinguish the United States from "godless Communism" during the height of the cold war took effect on Flag Day - June 14 - 1954.

The other five justices, in an opinion by Justice John Paul Stevens, said that the United States Court of Appeals for the Ninth Circuit should not have decided the case because the plaintiff, Dr. Michael A. Newdow, lacked standing to bring it.

While that procedural ruling left the constitutional issue unresolved, it did have the effect of removing a potentially inflammatory issue from the election-year agenda. Even if another plaintiff, one who has standing, challenges the pledge in a new case, there is virtually no chance that case could reach the Supreme Court before next year.

Dr. Newdow and the child's mother, Sandra Banning, who were never married, live apart and under a California court's custody order, Ms. Banning has the final say over their daughter's education. Ms. Banning, a Christian, filed a brief with the Supreme Court expressing her desire that her daughter, who is now 10, continue to recite the pledge with "under God" in it.

Referring to Dr. Newdow, Justice Stevens said that "the interests of this parent and this child are not parallel and, indeed, are potentially in conflict." He said that while Dr. Newdow was free to "instruct his daughter in his religious views," California law did not give him "a right to dictate to others what they may and may not say to his child respecting religion." Lacking a plaintiff with standing, the federal courts did not have jurisdiction over the case, Justice Stevens said. Justice Antonin Scalia recused himself last fall from the case, Elk Grove Unified School District v. Newdow, No. 02-1624, at Dr. Newdow's request after having publicly criticized the Ninth Circuit's ruling.

In a telephone interview on Monday, Dr. Newdow, an emergency room physician who is also a lawyer, said he had heard from "fellow atheists who are waiting in the wings" to bring similar lawsuits of their own. How the next case might turn out is anyone's guess, he said, noting that "three justices said the pledge is O.K. and five didn't say anything."

Dr. Newdow argued his own case before the Supreme Court with passion and flair. Asked in the interview whether that was the experience of a lifetime, he answered by expressing great frustration with the California family law. "The experience of a lifetime is to love your kid and be with her," he replied.

The competing opinions on Monday were portraits in irony, some probably intentional and some, perhaps, not. Justice Stevens, one of the court's most liberal members, offered a paean to judicial restraint in explaining why the court should not reach the merits of the case.

The "unelected, unrepresentative judiciary in our kind of government" should not reach out unnecessarily to decide cases, Justice Stevens said, quoting from an opinion written in 1983 by the conservative icon Robert H. Bork, then an appeals court judge. Justice Stevens is a consummate craftsman, and the sly reference was clearly intentional.

Chief Justice Rehnquist, who like his fellow conservatives is usually inclined to a strict application of the court's rules on standing, this time criticized the majority's invocation of the doctrine as "novel," "ad hoc," and so narrowly drawn as "to be, like the proverbial excursion ticket - good for this day only."

Whether the chief justice intended it, that remark mirrored almost exactly the criticism of the majority opinion he joined four years ago in Bush v. Gore, the case that decided the 2000 election through an unusual application of equal protection principles and with instructions that the decision not be cited as precedent for any other case.

Addressing the merits of the pledge issue, Chief Justice Rehnquist said that "reciting the pledge, or listening to others recite it, is a patriotic exercise, not a religious one." In her opinion, Justice O'Connor called the pledge a permissible example of "ceremonial deism" rather than religious worship, similar, she said, to the words the Supreme Court's marshal intones at the start of each session: "God save the United States and this honorable
court."

While both Justice O'Connor and Chief Justice Rehnquist found the pledge constitutional under the Supreme Court's existing precedents, Justice Thomas took a different approach. The court's church-state precedents made the pledge unconstitutional and those precedents should be re-examined, he said.

The issue of Dr. Newdow's standing had shadowed the case, and the outcome was not particularly surprising. The appeals court had ruled that while he did not have standing to sue on behalf of his daughter, he had the right to assert that he, as a parent, was injured by his daughter's exposure to a religious message that contradicted his own lack of belief.

That analysis was erroneous, Justice Stevens said. Emphasizing Ms. Banning's "veto power" under state law, Justice Stevens said that Dr. Newdow could not use his status as a parent to go to court to "challenge the
influences to which his daughter may be exposed in school when he and Banning disagree." He added, "When hard questions of domestic relations are sure to affect the outcome, the prudent course is for the federal court to
stay its hand."

http://www.nytimes.com/2004/06/15/politics/15pledge.html?ex=1088306264&ei=1&en=cae125f95c0089e5