pug846

If we are going to start name dropping who thinks Newdow was decided correctly, I could name a half a dozen preeminent legal scholars, such as Douglas Laycock and Larry Saeger, who think the case was decided correctly.

I’m still shaking my head how Fernandez could possibly think that a belief in monotheism is neutral compared to religion. Is he that ignorant about religion in general?

From Newdow

I’ll be interested in how the conservative justices square the last sentence with prescribing what is orthodox in religion, namely, monotheism, with the pledge.

But yes, clearly the decision ignored stare decisis and this was clearly an “activist” decision. (Read activist as: ignoring Supreme Court dicta and following well developed case law on impressionable school children, the nature of the pledge, and the coercion and Lemon test.) Fernandez’s dissent was clearly non-activist (Read non-activist as: ignoring Supreme Court precedent and ignoring the obvious fact that every religion does not accept monotheism.)

The ridiculousness of Fernandez’s dissent is revealed if the pledge were changed to “Under Gods” or “Under No God.” Could he honestly write with a straight face that having school children recite those phrases on a daily basis did not discriminate against any religion?

enfant terrible

First of all, I must say something in defense of Leviathan's integrity and consistency. If he believes that atheists should not mind the words "under God" in the Pledge of Allegience, he is not necessarily being discriminatory on religious grounds. Based on an unsolicited private message he has sent me, he also seems to believe people should not mind being described as "punk" or "asshole". Of course, I would be wrong in defending him if his message to me were motivated by my atheism, but I don't believe so; I am convinced it was his sincere and usual way of addressing all human beings he disagrees with.

That said, I am pleased to see a little bit of substance beginning to bud amidst the forest of empty rhetoric in his posts. I will be glad to address his precious (if only because they are rare) substantive arguments, but regretfully also obliged to point out the vacuity of the bulk of his posts.

It is quite disturbing that Leviathan opens his case with the sentence "Newdow ignores precedent", but never cites a single precedent that Newdow contradicts. "A slew of cases" cited by Judge Fernandez might more appropriately be described as a spew of cases, as he lists 10 cases in one breath without any quote or explanation what particular statements in those cases support his claim.

Particularly weak is the citation of Justice O'Connor's support for the words "under God": not only was this statement, in her concurrence in Wallace v. Jaffree, 472 US 38 (1985), dicta (statement not directly relevant for the decision, and thus without precedental value), but it was given in a footnote and as a rebuttal of then Chief Justice Burger's attempt at reductio ad absurdum (which was really an argument appealing to the public sentiment). It is also notable that Wallace struck down the amendment of Alabama law which added prayer as a purpose of the minute of silence in schools, a close analogy to the 1954 law that added "under God" to the Pledge, and, I repeat, Justice O'Connor concurred with that decision.

I have not been able to find the 7th Circuit's Sherman decision on the Web, so I cannot comment on whether it deals with the same issue and whether it conflicts with Newdow, but that is irrelevant in the context of legal precedent. Opinions of one Circuit are considered legal precedent only within the same Circuit; other Circuits may of course use them in their reasoning, but are in no way bound by them.

Finally, let's look at Justice Goldberg's concurrence in Abington. First of all, the Court's decision in that case was that That is all from the case that is relevant in the context of stare decisis. But I have no need to rely on technicalities. In the paragraph directly preceding those quoted by Leviathan, Justice Goldberg states: (Emphasis added.) The sentences quoted by Leviathan merely explain and particularize this principle, and I will also quote the sentence that immediately follows them:I am comfortable saying that, even taken out of context, Justice Goldberg's thoughts in no way contradict Newdow. To claim that they did would be tantamount to claiming that pre-1954 PoA was not neutral with respect to religion, but hostile to it. Nevertheless, I provided the proper context so that even those most suspicious of Newdow can ascertain that no precedent even remotely clashes with it.

(To be continued...)

enfant terrible

(Continued)

Speaking of Abington, it appears that Leviathan honors me and claims that my argument contradicts Justice Goldberg's dicta. Since my argument was that the state may not promote religion, and Justice Goldberg wrote that it may not favor between religion and nonreligion, I leave it to the audience to decide just how fast my words made Justice Goldberg spin in his grave.

It is not unusual for salesmen to try to add some otherwise unsellable junk to a package of goods, so I am not surprised that Leviathan tries to sell criticism "through legislative channels" and "numerous Congressional findings" as part of the bulk package of alleged judicial precedent. No, thank you, I don't buy junk. It is not quite clear if polls and Congressional resolutions after Newdow are also supposed to have precedential or merely transcendental authority, but still no, thank you, I don't buy cereal just for the funnies on the box.

Although I could list numerous logical errors in Judge Fernandez's dissent which Leviathan praises, it seems to me that those are well known to the audience here, so I will just summarily declare that opinion logically impaired - unless a third party requests explanation. Besides, that is as deep as Leviathan's criticism of the majority opinion has reached. He has not pointed to any flawed reasoning in that opinion - and, after all, he has opened this thread and ought to be entitled to attack first.

If I may guess from his position and the authorities he tends to cite, Leviathan is a conservative and, I dare guess, generally favors the "original intent" arguments in judicial opinions. But lo! how easily he abandons - even disowns - such arguments here:
Of course, the Newdow opinion diligently cites the 1954 law's legislative history as well as President Eisenhower's statement during the signing ceremony. I would understand if a staunch conservative had difficulty grasping the plain meaning of the word "God", but to fail to appreciate its legislative intent and history seems sacrilegious. Yet I must conclude that, in Leviathan's world, Sandra Day O'Connor's footnote trumps both dictionaries and legislative history.

This conclusion is puzzling, but it may be explained by Leviathan's aversion to (or perhaps anxiety of) dictionaries and history. I will explain what I mean on one example of each.

First, let me address his difficulty with the meaning of words. In his dissent in Allegheny, Justice Kennedy wrote:
(Internal quotes and citations omitted.) And this is how Leviathan reads it:
(Emphasis added.) Reading comprehension does not seem to be his strongest asset.

History haunts him even more. He may honestly believe what he wrote, that Jefferson or Madison used the phrases "under God" and "In God we trust" in ceremonial statements. Not that it would matter, since there is no comparison between a President mentioning God in a speech and a law including God among the nation's essential ideals, but I challenge him to provide a single example. How he asserts that the Declaration of Independence and the Federalist Papers ought to be consistent with the establishment clause is unclear to me, but it clearly requires a time warp as well as recognizing those documents as laws. But I am not sure how receptive most conservatives would be to a law that made life, liberty and the pursuit of happiness inalienable rights of all individuals. Oh well.

To end this on a lighter note, let's look at Leviathan's idea of evidence and proof:
So why is Bill wrong? Because Kmiec says so. And what is Kmiec's argument? That thirteen justices (is this number a coincidence?) say so. Say what? That the words are constitutional... Well, not exactly, but that they are not a prayer... And they did not exactly "say" this, but "opined at various times"... And note the magic words "Wingardium leviosa!"... Well, not exactly those, but "by reasoned implication"... Which "reasonedly implies" that words about God which are not prayer are not unconstitutional. I am rather surprised to learn that Kmiec claims that the words "under no God" (clearly not a prayer) would be perfectly constitutional! Is he a commie or what? I am still curious how all this supports "the exact opposite" from what Bill wrote, but there must be some spell in the new Harry Potter book which will provide the answer.

Worldtraveller

Leviathan wrote:
Well, ok, let's look at the DoI:
From this website
One of the most famous (and long winded!) sentences ever written does not really imply any kind of belief in a xian god, although the phrase "Nature's God" tends to imply deism. To me, the context is that what they are doing is setting down a system of laws and government based on 'natural laws'. Which, I would assume, means logic and reason. While I admit, that last statement may be a bit biased, that is what I feel the founders intended.

The only other reference the supernatural is in "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights..." This seems again to imply a non specific deity. But if we take it exactly how it was written, then we go back to before the time when women were also considered to be endowed with those same inalienable rights. Just like we have moved on to include women and non-whites with those rights, is it not reasonable to try to include the non religious?

And as far as the Federalist Papers, while I admit I did not read them in thier entirety (they have just been added to my reading list), I could find no mention of god or a creator.

So please explain how the founders would view adding "under god" to the pledge as having a secular purpose, or explain how god had such a central role in the shaping of the thoughts of the founders, when all evidence seems to be that they went out of thier way to make the government secular.

-Lane

ZiprHead

This may be a little off topic but I definitely feel harmed by the inclusion of "under god" in the pledge.

I would very much like to pledge allegience to my country using the official pledge of this land. I very much love my country (some of the things the people and politicians do is another story) but I cannot in good conscience recite the pledge as it stands today. The insertion of the "under god" phrase unnecesarily adds a divisive nature to the pledge. The only divisive nature of the pledge without the phrase is to divide those who do pledge allegience and those who do not.

*although the liberty and justice for all thing is arguably hokum too.

Stephen Maturin

Hoo doggy, I'm way behind the curve on this thread, and at this point have little if any chance of catching up! Just a few disjointed general comments for now:

Yes, stare decisis is indeed a very big deal. However, neither the horizontal form (courts following their own prior decisions absent a contrary ruling from a higher court) nor the vertical form (inferior courts following the decisions of superior ones) of that doctrine applies here. As you acknowledge, there's no on-point Supreme Court decision. Admittedly, there's some "under God" favoring obiter dicta out there, but none of that stuff is binding. Nor is case law from other jurisdictions. Trial court rulings and case law from other circuits falls under the general heading of "persuasive authority" that the Ninth Circuit was free to take or leave as it saw fit.

As I see it, the issue here is not whether Newdow runs contrary to other cases or public/scholarly opinion but instead whether the Ninth Circuit made the right call. I'm convinced that it did. The passage that pug846 quoted looks rock solid to me, both legally and logically.

I suspect you're right. Assuming the Court grants cert -- a pretty safe assumption -- and assuming it reaches the merits of the Establishment Clause issue -- a somewhat less safe assumption -- a majority will likely vote to reverse.

Thanks for the link, WT! The only mention of God that site's search feature turns up appears in Federalist No. 43, authored by Madison. The reference occurs in the context of how the old confederation could be dissolved without the consent of all the states:

That's hardly a ringing endorsement of Abrahamic monotheism. And it's certainly not a par with the 1954 statute that added "under God" to the Pledge. The statute's legislative history establishes conclusively that it was all about endorsing belief in a particular deity.

Here ya go, enfant: Sherman v. Community Consolidated Sch. Dist. 21, 980 F.2d 437 (7th Cir. 1992).

enfant terrible

Stephen, thanks for the link. I have not had the time to read it yet, but the opening summary seems to suggest that the 7th Circuit considered the Pledge in its entirety, as if all of its text had the same tradition. By the reasoning of Wallace, this would be an entirely different question: in Wallace, the SC said that other state statutes that mention prayer as one of the purposes of a minute of silence are constitutional; it was amending the Alabama statute to mention prayer - with no other purpose than to emphasize the religious aspect - that was unconstitutional.

Leviathan

Let's get something straight: just b/c you think the issues are "rehashed," does not mean what you, or anyone else here, said was legally correct, persuasive, or even rationale. All I have seen so far from Newdow, in your opinion(s), is that it was "well reasoned," and yet not one court has followed its line of reasoning, the only ones that have addressed the issue found Newdow entirely unpersuasive, and quite frankly the dissents in Newdow I and II made a helluva lot more sense than the majority.


Oh, I see, we only take JD's who *we* think are neutral observers: forget the fact they've studied the law, and were distinguished enough to be published. Do I have any more "neutral" observers, lets see: Clay Calvert and Robert D. Richard, Loyola of Los Angeles Entertainment Law Review, D. Chris Albright, Nevada Lawyer, May, 2003, and finally, David Barton, Notre Dame Journal of Law, Ethics, and Public Policy. Do you have a problem with these too?

A Shepardizing of Sherman has numerous cases, too many to list (there are 50, I will peruse them for the really good ones). It is of importance to note that the Supreme Court denied cert. after Sherman was decided: implying it was correctly decided and they saw no conflict in the Establishment clause jurisprudence. 113 S. Ct. 2439.

Through precedent, courts have made a very persuasive argument that the mentioning of God in the Declaration of Independance, and other historical documents, along with the Pledge, is merely an act of remembrance, of what the nation was founded on. Justice Brennan made such an argument, I believe, as well as other courts. To me, that makes a helluva lot more sense than the counterargument, that the utterance of "Under God" is somehow, though not explained how, a religious act. In contrast, it is a Pledge, a political act, and merely examines the history of this nation, which is that this nation was founded on the principle that God gave humanity their rights. You can disagree, as vehemently as you want, that you don't believe that, but there is *no question* what the founding fathers believed.

Your interpretation of the Establishment clause would tell Thomas Jefferson and James Madison they were hypocrites, for establishing such a "wall" of seperation, and then making utterances to God. I have too many of these utterances to name, but if you want to read some of them, start with the Sherman decision, and then follow it up with Fernandez's dissent in Newdow.

You saying its well-reasoned, does not make it well reasoned. The Court in Newdow examined every test in Establishment clause jurisprudence, even quoting Justice O'Connor, when she has herself said she believes that "Under God" is constitutional (I've provided that citation). Additionally, the decision in Sherman, which O'Scallian in his dissent in Newdow II identifies as being in "direct conflict" with Newdow, Sherman was much more well reasoned. While you are correct that the S. Ct. has never *directly* addressed this issue, they have noted in numerous cases before, that the Pledge is constitutional. In all of the school prayer cases, in which the Court struck down laws as unconstitutional, the Court made a special effort to constrict their holdings, and to not allow inferior courts to interpret the law as they see fit. Too bad, then, that the Ninth Circuit didn't follow the Seventh's example.

If you want examples of these warnings, start with Engel v. Vitale. The Court in this pinnacle decision made a special effort, in dictum, to state that all "religious" observances were not being targeted by the Court's holding. Hell, I'll just cite it for you:

"Nothng in the decision here should be deemed as inconsistent with the fact that school children and others are officially encouraged to express love for our country by reciting historical documents such as the Declaration of Independance which contains references to the Deity or by singing officially espoused anthems which include... professions of faith in a Supreme Being, or with the ... many manifestations in our public life of belief in God." - 370 U.S. 421, 435.

You want another example? School District of Abington v. Schempp.

"Notably while Bible reading and Lord's Prayer were deemed impermissible due to their wholly 'religious character' those portions of the statute regarding the Pledge escaped unscathed. In a concurring opinion, even Justice Brennan warned against any 'attempt to impose rigid limits upon the mention of God... in the classroom' as potentially 'fraught with dangers'. Brennan noted that the ''referance to divinity in the revised pledge... may merely recognize historical fact that our Nation was believed to have been founded Under God.' Thus reciting the pledge may be no more of a religious exercise than the reading aloud of Lincoln's Gettysburg Address, which contains a [similar] allusion."

Albright, D. Chris, Nevada Lawyer, May, 2003. The author is a graduate of BYU Law School, cum laude, and is a former judicial clerk to the Nevada Supreme Court.

Ok, ok, another example? Wallace v. Jaffree. That is the statement by O'Connor that I've already mentioned.

Alright, one more example, and this one is very damning to Newdow, as its decision is rested mostly on the Court's decision in Lee v. Weisman.

"The Court, once again, stressed the limitations of its holding, noting that it was not ruling 'that every state action implicating religion is invalid' even if some citizens find it offensive. Rather, the Court noted, 'a relentless and all-pervasive attempt to exclude religion from every aspect of public life could itself befcome inconsistent with the Constitution'."

Above citation. Seems to me the Court is giving alot of powerful dictum, stating that it is *not* going to travel the Newdow road. Is it your position, gentleman, that *all* of these decisions, which Newdow erroneously cites for its authority, are not well reasoned?

Oh, and if you want to make the "its just dictum" argument, note the following:

"The Ninth Circuits Pledge decision relied heavily on the Supreme Court's ruling in Santa Fe Independant School District v. Doe. The Santa Fe case, which overturned studentled invocations prior to football games, is notable in explaining that the analysis to be applied 'is properly guided by the principles' the court endorsd in Lee THus, despite its reliance on the Santa Fe case, the 9th Circuit failed to recognize that the principles enunciated in Lee were still guiding, in preventing "overt religious exercise" such as prayer at public events, but not allowing for a "relentless and all pervasive attempt to exclude' religious references from public life. Indeed in Santa Fe itself, the Court again took pains to note that "by no means" does the First Amendment "impose a prohibition on all religious activity in our public schools." Clearly the Lee and Santa Fe cases deal with prayer, and not less overtly religious ceremonies like the Pledge, in which tangential solemnizing references to divinity are allowed.

Like my youngest child, the 9th Circuit judges responsible for the Pledge decision seem to know the color of he crayon, but not how to stay within the lines. Indeed, the 7th Circuit had no difficulty recognizing that recitation of the Pledge in public schools remained Constituitonal (so long as non-compulsory) notwithstanding the Supreme Court's school prayer rulings, even determining that, as an "inferior court" it "had best respect" that which the Supreme Court had clearly delineated on the subject: "If the Court proclaims that a practice is consistent with the establishment clause, we take its assurances seriously. If the Justices are pulling our leg, let them say so."

Same citation. In reference to the 7th Circuits request for the S. Ct. to "say so if they are pulling our leg" [meaning the 7th Circuit misinterpreted the dictum], then isn't it interesting that the S. Ct. denied cert? I guess they got it right.

In seperation of powers doctrine, the check that the Congress and the President have on the anti-majoritarian Court, is to criticize their decisions, when clearly faulty. Throughout the course of the Court's history, the only weapon they have, in enforcing their decisions, is their legitimacy. The Constiutition was drafted that way, as the Court was seen as the "least dangerous branch" of Government, to quote Hamilton. Thus, given that they neither have the power of the sword, or purse, but only their legitimacy, the public's reaction, where it is so visceral against a decision, almost to the point that *everyone* sees the decision as erroneously stated, well then, that public reaciton can shed light on the court's errors. If you need scholarly material on this, reference Hollow Hope by Rosenberg.

The hypocrisy argument is one of the most damning to your position, and saying that Jefferson owned slaves is not going to show the argument is without support. Numerous law reviews, and numerous Court deicsions have made references to the words of Jefferson, Madison, and other founding fathers, in establishing the First Amendment, and many court decisions have argued that b/c the founding fathers advocated the First Amendment, and at the same time advocated ceremonial acts of recognizing God in public, then no reasonable interepretation of establishment clause jurisprudence could say that the First Amendment bars any reference to God in the public light. That is the holding of Newdow, and it threatens the reading of the Declaration of Independance in schools. That is completely and utterly ridiculous, and the Supreme Court, in the above quotations I have presented to you, has said such an argument will not stand in front of that Court. Thank God.

If you dont' want to discuss the issue, don't. No one is forcing you to.

But this argument of "there's no God in the Constitution." Lets examine that. The Decl. of Independance claims that God granted humanity its rights. The Constitution gives those rights, and you want to say that God isn't part of the Constitution? The metaphor of Jefferson's concerning the establishment clause has been misinterpreted over centuries to show that seperatism is the legal joy of the day. I'm sorry, the walls of seperation of church and state are high, but they are not absolute, nor did the framers intend them to be.

If you want to examine historical tradition, go to 4 U.S.C. 4, the federal law for the Pledge, and note the overwhelming Congressional findings of how God is "historical tradition" in this nation. Hell, it even cites the Mayflower Compact. For you to argue that God was not a founding part of this nation, a keystone of this new nation, is absolute folly.

Excellent, cite me to some court decisions that have quoted these secondary sources. Wait, there are none, absent Newdow. In contrast, I have 13 Supreme Court Justices, 5 on the court today (oops, there goes a win), that say Newdow was decided incorrectly.

1. He argues its de minimis. I'm sure you're aware of that argument.
2. He argues it isn't an endorsement of religion, thus it isn't "partial."

And with all due respect, the man cites numerous S. Ct. cases for his propositions. Calling a Federal Judge "ignorant," when they have precedent on their side isn't exactly correct.

That's a fucked up definition of activism. Usually, it is the Ninth Circuit that is taking dictum, and creating law on numerous subjects, only to be smacked down in 9-0 decisions by the Supreme Court. So don't claim its a "conservative" bias, when Ginsberg, Stevens, Souter, and company are also voting against them. They're just wrong on the law.

And I'd just love to see this "well developed case law." All the case law cited in Newdow is distinguishable, on numerous grounds. Namely, it is distinguishable, b/c the Court has constrained its holdings to show that ceremonial acts such as the Pledge is not an endorsement of religion (note O'connor's concurrence in Wallace, as well as the fact that all the cases you are citing are speaking to coerced acts of religious faith, such as the forceable recitation of the Pledge. *That* is what those cases were decided upon, and Newdow is distinguishable b/c there is no coercion. Newdow had to refine his complaint to argue, not that his little girl was forced to stand and say the pledge, but that she's forced to "hear" it. Sorry, there's no case law on that, and all the dictum goes the other way.

Oh, so the Seventh Circuit, making the same argument Fernandez did, is wrong to? Then why did the S. Ct. deny cert. to the Seventh Circuit Sherman case? Usually, the S. Ct. denies cert. when there is no conflict in the law, and the lower court opinions are square with precedent. The "obvious fact" is that every utterance of God in public is not an act of religion. Fernandez hits the nail on the head when he writes that only a few, hypersensitive plaintiffs would find such acts as constituting religion, and only those individuals who are so dead set on destroying religion in the public sphere completely would make such an argument.

To my knowledge, upon further review of everyone else's post, and despite Mr. enfant's heated biased rhetoric, I'd say none of you are saying anything uniquely seperate from the issues already discussed. If you believe you are, simply cut and paste, but otherwise, lets keep it going.

Leviathan

"Indeed the same First Congress which would propose the Bill of Rights for ratification by the states also enacted an ordinance for the governance of the Northwest Territory, providing that "religion, morality, and knowledge, being necessary to the good government and the happiness of mankind, schools and the means of education shall forever be encouraged. Nor were the Northwest land grants for schools justified by these words then limited to nonsectarian schools.

Moreover, on the same day the House voted to adopt the 1st Amendment for ratification, a representative proposed that George Washington issue a Thanksgiving Day Proclamation, for the people of the nation to join 'in returning to ALmighty God their sincere thanks for the many blessings he had pured down upon them.' "

It seems a history major hasn't skewed history at all: it is the revisionists who wish to erase religion from the founding fathers that need to wake up, dear oh honorable enfant. I thank you for not adhering to my request, and also for not keeping private messages private. If you need any further examples, you could start by reading *any* of the Court decisions cited in Newdow, or specifically Fernandez's dissent. They are replete with historical evidence which show that this nation recognized God in public, at every turn, in law and in practice (thus your argument above is bunk), and thus it is absolutely hypocritical, to now interpret the establishment clause as forbidding the utterance "under God" in public schools. It simply flies in the face of well over two hundred years of history. Make all the personal asides you want, speaking to my "reading comprehension" or whatever makes your ego feel better: but the weight of authority is on my side. Some of you are bright enough to see that the S. Ct. will overturn Newdow, while it appears others are more stubborn, clinging to the "precedent" you believe you have found in one erroneous court decision.

Oh, and your interpretation of Sherman is incorrect. The issue, specifically cited by the Seventh Circuit, is the very question that Newdow decided.

"Does it follow that a pupil who objects to the content of the Pledge may prevent teachers and other pupils from reciting it in his presence? We conclude that schools may lead the Pledge of Allegiance daily, so long as pupils are free not to participate."

Your own Newdow decision recognizes that Sherman goes the other way, and attempts to criticize the decision, thus they recognize they had to criticize the holding of Sherman, as they decided the same legal issue in a different light.

Additionally, the dissents from Newdow I and II, Fernandez and O'Scallian, both point to the fact that the Seventh Circuit has already decided this legal issue, and therefore the Ninth's decision directly contradicts that of another sister circuit.

enfant terrible

I'll do this in bits and pieces and chronologically, as it is easier and faster for me. Apologies to the readers for the chopped-up organization.

Of course, but do you admit that the same applies to you?

And all we have seen from you about the dissent is that you like it a lot. But Newdow is law, and the dissent is not, so we don't even need to provide any arguments; you do.

The decision is recent, so it is hardly notable that no court has followed it yet. You have not provided any examples of court opinions that have criticized it.

We already know that you like them. You don't have to repeat that.

About a million people in the US have studied the law, and you don't need to be particularly distinguished to publish in a law review, where the editors are typically law students. If you compromise your logic by frequently resorting to argumentum ad verecundiam, at least make it persuasive!

This is not to say that I think Kmiec is a "nobody". On the contrary, I am well aware that he is a famous constitutional scholar. I am also well aware of his philosophical and political positions, which are very conservative (to put it mildly). You'll have to admit that he is the academic counterpart of Scalia. (You should not have a hard time admitting that, as it must be a compliment in your eyes.) This hardly makes him mainstream.

Would you care to explain why all but one were published in Catholic schools? Don't such schools have a conflict of interest in the matter?

How many of those 50 are outside the 7th Circuit jurisdiction? (Of course, it is binding precedent for all district courts in the 7th Circuit.) Of those, how many are by other appellate courts? Really, only the last category has any relevance for the argument.

You either have no clue about the Judiciary, or are very dishonest. Denial of certiorari does not imply anything whatsoever about the merits of the case. The Supreme Court can grant certiorari only in a small fraction of petitions. It is entirely wrong to interpret denial of certiorari as agreement with the lower court's decision.

(The rest later...)