Briefs for the Pledge of Allegiance Case

On March 24th, the US Supreme Court will be hearing oral arguments on Elk Grove Unified School District v Newdow, the pledge of allegiance case. The 9th circuit court of appeals ruled against the school district in 2003 and the school district appealed to the Supreme Court. Goldstein Howe's indispensible SCOTUS blog has links to a number of briefs filed on behalf of Newdow, the respondent in the case, and on behalf of the school district as well. This is an absolutely wonderful resource for those interested in constitutional law and the cases before the court.

Follow up: Thanks to Eon for pointing me to one of the briefs from the other side, an amicus brief filed by the Rutherford Institute, a conservative legal think tank. Rutherford rightly points out that there is a tension between different court precedents on this issue, as there often is. A simple application of the Lemon test, the three pronged criteria that the court set out in 1971 to determine establishment clause violations, to the legislative act that added the words "under God" to the pledge leads to the clear and easy conclusion that there is a violation here and the law must be struck down. Yet the Supreme Court has also in the past ruled that the words "under God" in the pledge do not do violate it. That's a refreshing bit of honesty on the matter from the Rutherford Institute.

There have been many contradictory statements on this from the pro-pledge side, most notably the inconsistency between the solicitor general's brief, which claims that when students recite the words "under God", the words have no real religious meaning but are merely descriptions "about the Nation's historical origins, its enduring philosophy centered on the sovereignty of the individual, and its continuing demographic character", and the President's statement that when students recite the pledge they are affirming "our reliance on God". They have tried to have it both ways, arguing on the one hand that it's not really a religious statement at all, and on the other hand that this is an attempt to "take God out of the schools". So it's rather refreshing to see the Rutherford Institute admit that of course it's a boldly religious statement which is in violation of the Lemon test. The kicker, of course, is that they are urging the court to overturn the long-used tests for establishment clause violations completely in favor of a far less restrictive standard that allowed far greater latitude in terms of government-mandated religious expression. I'll probably write a longer post analyzing the question of what they would replace those tests with at some point soon.

Supreme court observers have noted that there are 3 votes on the court for scrapping the Lemon test and, presumably, Everson entirely - Scalia, Rehnquist and Thomas. But Scalia has recused himself from this case, and he is clearly the ablest articulator of that position. It will be very interesting to see how the court rules on this later in the year. Stay tuned.

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