Monday, June 14, 2004

The Supremes Punt


There's nothing like sidestepping a thorny legal issue by invoking a technicality. That's especially true when you have to make up the technicality to begin with. The United States Supreme Court in Elk Grove Unified School District vs. Newdow did just that. The Court's opinion avoided deciding the issue of whether or not the phrase "under God" in the Pledge of Allegiance was constitutionally impermissible. Instead, it decided that the plaintiff was not entitled to prosecute the lawsuit to begin with because he lacked standing:
In our view, it is improper for the federal courts to entertain a claim by a plaintiff whose standing to sue is founded of family law rights that are in dispute when prosecution of the lawsuit may have an adverse effect on the person who is the source of the plaintiff's claimed standing. 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.
I don't agree with this reasoning. It seems to me that the "prudent course" taken by the Supreme Court was to avoid deciding an issue sure to evoke the public's passions, both pro and con.

Not all of the Justices agreed with Justice Stevens, who authored the Court's opinion. Chief Justice Rehnquist, along with Justice O'Connor and Justice Thomas, while concurring in the judgment, dissented from the Court's ruling. All three wrote opinions. Of the three, the one I agree with is the Chief Justice's. Chief Justice Rehnquist came out swinging from the very beginning of his opinion:
The Court today erects a novel prudential standing principle in order to avoid reaching the merits of the constitutional claim. I dissent from that ruling. On the merits, I conclude that the Elk Grove Unified School District (School District) policy that requires teachers to lead willing students in reciting the Pledge of Allegiance, which includes the words "under God," does not violate the Establishment Clause of the First Amendment.
The Chief Justice rejected the majority's standing decision, and correctly so, because this case presented a federal question that transcended the family law issue to a far greater extent than the cases cited in the majority opinion. He also pointed out the deference that the Supreme Court has traditionally given to regional courts of appeals in matters involving the interpretation of state law. Clearly the Ninth Circuit was in a far better position to interpret California law. Finally, the Chief Justice takes a parting shot at the majority's opinion:
Although the Court may have succeeded in confining this novel principle almost narrowly enough to be, like the proverbial excursion ticket--good for this day only--our doctrine of prudential standing should be governed by general principles, rather than ad hoc improvisations.
Ouch!

The Chief Justice then moves on to discuss the history of the Pledge of Allegiance and the historical attitude of the Nation's leaders, from George Washington's first inauguration on April 30, 1789 to Lincoln's second inaugural address to Wilson's appearance before Congress in April 1917 to request a declaration of war against Germany to Franklin Roosevelt to Dwight Eisenhower. He cites numerous examples, including the Supreme Court Marshal's opening proclamation which concludes with "God save the United States and this honorable Court" to demonstrate that our national culture allows public recognition of our religious history and character. He concludes that the phrase "under God" does not convert its recital into a "religious exercise," but rather, it is a declaration of belief in allegiance and loyalty to the flag and the Republic.
The phrase "under God" is in no sense a prayer, nor an endorsement of any religion, but a simple recognition of the fact [that] "From 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. . . . [P]articipants promise fidelity to our flag and our Nation, not to any particular God, faith, or church."
Sooner or later the Court will have to confront this issue head on. Hopefully, Chief Justice Rehnquist's opinion is a preview of what the Court's decision will be. If it is not, then we should drag the Declaration of Independence, our founding document that references certain unalienable rights with which we are endowed  by our Creator, out of the National Archives and into the street to be trampled upon.

A copy of the Court's opinion, as well as the opinions filed by Chief Justice Rehnquist, Justice O'Connor and Justice Thomas can be found at Cornell's Legal Information Institute website.

File under The Legal Profession.

11:35:17 PM    Go ahead, make my day  []  trackback []  

Good For You Reggie!


No, not Reggie Jackson. It's nice to see that there's guys like Reggie Sanders in the screwed up world of sports.

In the third inning, Gary Matthews Jr. of the Rangers fouled a ball into the seats and a burly man leaped over a row, knocking over a 4-year-old boy with his legs, and grabbed the baseball.

The incident was caught on television cameras and the fans began to chant for the man to give the boy the ball, but he refused. Sanders saw what had occurred on a television in the clubhouse. In between innings, Sanders came out and summoned the boy and his mother to near the Cardinals' dugout and gave him a bat and ball as the crowd cheered.

File under From The Sports Desk.


8:23:45 AM    Go ahead, make my day  []  trackback []  

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