Alonzo Fyfe

Newdow vs. U.S. Congress: Dissenting Opinion.

Note: I like it when a view is so wrong that a key rebuttal can be encapsulated in a single sentence.

Toward this end, I have read through the dissenting opinion of Judge Fernandez in the case of Newdow vs. U.S. Congress.

Substantially, his dissent is expressed plainly in his closing paragraph.

"In short, I cannot accept the eliding of a simple phrase "under God" from our Pledge of Allegiance, when it is obvious that its tendency to establish religion in this country or to interfere with the free exercise (or non-exercise) of religion is de minimis.

I answer thus:

It would seem that the phrase "indivisible" must then also be taken as de minimis toward the establishment of a unified republic, and that the phrase "with liberty and justice for all" similarly de minimis toward the establishment of a free and just nation.

Philosoft

Spot on, Alonzo.

Grumpy

When does "de minimus" become de maximus? A trifle here, a trifle there... sooner or later we end up with something significant. And if the law is not concerned with trifles, does that mean the courts are powerless to turn back an unconstitutional tide, as long as the offenses are each minimal?

Next to the "it doesn't mean anything" argument, the most popular defense of "Under God" has been to point to other references to God: on money, in oaths, on buildings, etc. At what point do these tokens of "ceremonial deism" amount to an establishment of monotheism?

I'd say that point has already been reached. I also know there are plenty who want to go further, so let's put "In God We Trust" on classroom walls, and the Ten Commandments in courtrooms. And if anyone cries foul, simply point to all the previous tokens, which naturally justify the next one. And then that one justifies the next one. And the next one.

[ July 18, 2002: Message edited by: Grumpy ]</p>

hezekiah jones

de minimis, or "no harm, no foul," may in fact rule the day if it can be convincingly demonstrated that, pursuant to the recent evidence related to Newdow's custody battle which will likely be presented at the rehearing, that this new information endangers Newdow's standing.

But, I think, the danger Newdow's domestic woes may pose to his standing affect the court's decision only with respect to the state of California's actions, and not the other part of the decision. I believe Newdow's standing to reach the 1954 Act of Congress should emerge unscathed.

The portion of the opinion that deals with Newdow's standing to reach the 1954 Act rests on different precedent, and does not mention his right to direct his child's upbringing except in the final paragraph, where is it used to bolster the foregoing argument, as icing on the cake, as it were.

Does that make sense to any of the legal eagles out there or am I reading the opinion incorrectly?

NYC Gus

How can it be convincingly argued that "under god" is de minimis, with the amount of bruhaha this has stirred up?

Toto

I'm not sure where you are reading that. The standing issue depends on whether he can allege some "injury", which the court found when it found that his ability to direct the religious upbringing of his daughter was threatened.

I only see one section devoted to standing. It held that Newdow did not have standing to sue the state of California, but that he did have standing to sue the local school district:

Then there is a long discussion of the 1954 act, ending with:

In short, if there is no injury, there is no standing. If Newdow does not have the right to direct the religious education of his daughter, he has no standing to challenge the Act.

uhcord

Wow!

I never did know that a unconstitutional thing must violate the constitution to a certian extreme before it can be deemed unconstitutional.

*sigh*

Grumpy

I'm no "legal eagle," but at this stage of appeals, haven't the facts been set? Then again, this has all been about a motion to dismiss, so no facts have ever been contested. In that case, facts may be introduced de novo, for all I know. Which I don't.

Maybe I'm giving them too much credit, but I've gotta think that a lot of guys who shot off their mouths on the day of the ruling are regretting it now, for that very reason. Maybe that explains why the U.S. Senate <a href="http://www.senate.gov/~rpc/releases/1999/jd070202.htm" target="_blank">Republican Policy Committee</a> concludes that the ruling makes sense in light of Supreme Court precedent. That, or they want to demolish the Supreme Court.

[ July 18, 2002: Message edited by: Grumpy ]</p>

Alonzo Fyfe

The Republican Party is positioning itself to turn the makeup of the Supreme Court into an election issue.

Effectively, they are saying, 'Hey, see what ruin these liberal judges have brought us to? We have a chance now to take a stand and get rid of the last of them. FOUR MORE YEARS!!!!'

In short, the marketing ploy is to 'take this hostility presently directed to two judges on the 9th Circuit Court of Appeals and generalize it -- get the people to apply this same hatred to all liberal judges and liberal judgeships.'

Watch for it.

It's coming.

[ July 18, 2002: Message edited by: Alonzo Fyfe ]</p>

hezekiah jones

Thanks Toto and Grumpy.

What I was talking about is the section that begins right after your first quote, Toto: "We begin our inquiry by noting ..."

Maybe I'm wrong but I thought Newdow's standing to reach the school district (not CA, I stand corrected) depends on his right to direct the religious upbringing of his child (which I don't think his daughter's alleged Christianity necessarily affects) and his standing to reach the Act of Congress depends on separate precedent, Valley Forge, Wallace, Santa Fe, and so on, that doesn't contemplate the involvement of his daughter.

In other words, there are two rulings here: one against the school district, and one against Congress. Newdow's standing to reach the Act of Congress has nothing to do with his daughter, it's based on direct injury to the plaintiff, Michael Newdow.

Wishful thinking and/or poor reasoning on my part maybe. I will note again, since it's the topic of this thread, that there was no dissent to the issue of standing in this case. The dissent only refers to the establishment clause analysis, Section D of the opinion.