Tuesday, June 15, 2004

Pledge Case Ruling

The ruling just came down in US v. Newdow, the infamous pledge of allegiance case. It didn't reach a decision on the merits of the issue, rather it threw out the case on standing grounds. Stevens wrote the opinion, Rehnquist and O'Connor concurred in judgment but argued that Newdow had standing and the pledge was constitutional. Thomas concurred in judgment, also agreed Newdow had standing, and claimed that the pledge would be unconstitutional under current 1st amendment jurisprudence. He used that to launch into a diatribe why the current jurisprudence was flawed and the need to override Lee v. Weissman (1992).

A few thoughts:
I agree with Dana Mulhauser when she says the ruling is the best liberals (like myself) could hope for (The New Republic, 6/15/04, "Thank God"). A ruling that the pledge doesn't violate the constitution would be bad for obvious reasons. A ruling that the pledge DID violate the constitution would be bad because it would provoke a backlash similar to the Hawaii Supreme Court ruling which gave gays the right to marry, which spawned DOMA in the federal government and 38 states. The backlash would be even more pronounced here because of election year politics, what better way to motivate conservatives than the imminent threat of a Godless America? The dismissal of the case on a technicality (standing) dodges these harms and gives liberals a chance to fight another day.

All that being said, on a strictly legal basis the ruling is flawed. For the first and undoubtedly last time in my life, I find myself agreeing in part with Rehnquist and in part with Thomas, Newdow clearly did have standing to sue, and under current 1st amendment interpretation the pledge is clearly unconstitutional. Anyone who hasn't done so already should read the original 9th circuit appeals opinion, it presents a very persuasive case for why this is so. Thomas also convincingly argues why it is unconstitutional under current precedent. As to the standing claim, it seems to me that Stevens mischaracterizes the issue. He seems to feel that because Newdow's efforts to protect his religious views conflict with Sandra Banning's (his daughter's mother, with legal custody) efforts, Newdow can't file suit. However, I don't see where the conflict is. Newdow isn't asking for an injunction to prevent Christian influences from reaching his child. He's asking that government not take sides in his religious quarrel. That religion is a personal matter and often the matter of intense personal disagreement is the reason the first amendment exists, to prevent government intervention in something that was outside the purview of an overarching government authority.

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