STILL ONE NATION UNDER GOD. The Supreme Court tossed the pledge case back into the lap of Michael Newdow today, holding that he did not have standing. I predicted this when the case started, only I thought the 9th Circuit would be smart enough to do it and avoid being reversed. I was wrong about them. They were wrong about the case.
The Supreme Court, in a rare cute moment, issued the opinion today, Flag Day. Flag Day celebrates the original flag resolution in 1777. Rehnquist, O'Connor, and Thomas flatly stated their belief that the pledge is not unconstitutional. Scalia recused himself.
I think we will see futher challenges to the flag, designed to avoid the standing issue. Heaven forbid we should pledge to be under God.
1 comment:
I don't think we should worry about "under God" in the pledge. Rehnquist, O'Connor, and Thomas are clear on their position; Scalia recused, but I think we can assume he would have joined those concurring in the judgment. And, though Kennedy joined the majority on the grounds of standing, I think he would be willing to join 4, and write separately if necessary to acknowledge that the place of "under God," is de minimis, like "In God We Trust" on U.S. coins.
I think the real bang, though not unbelievable if you read his opinions up through Zelman (the Cincinnati voucher case), is that Thomas's opinion in this case says the Establishment clause is a federalism provision that should not be incorporated through the 14th Amendment to apply to the states.
-Publius
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