Toto

When I read Lev's profile, it says that he is a "Christian Relativist/Nihilist". It seems that this means that he believes that there is no objective reality, so he is free to believe whatever will bring him the biggest paycheck. Or he is free to support the established authorities and reject any attempt to get to the truth behind official propaganda. (He makes the same argument in this thread.

Perhaps this is an oversimplification of Lev's philosophy. I would invite him to start a thread in either Philosophy or General Religious Discussions to explain himself, and whether he thinks that Nietzche is turning over in his grave.

Buffman

I guess my approach to some of these issues is simply too pedestrian. What are the accurate facts?

Stephen Maturin

Howdy again, Leviathan.

I. EFFECT OF CERT. DENIAL IN SHERMAN:

We're certainly free to make any inferences that look reasonable. I prefer not to do that when it comes to cert. denials, though. In the Supreme Court's words:

Teague v. Lane, 489 U.S. 288, 296 (1989). As I see it, life's too short to spend much time speculating about why the Court declined to review a particular case.

It might, but the standing issue in this case is a complex and substantial one in light of the intervening California state court orders that obliged Newdow to stop prosecuting the case on his daughter's behalf. After those orders came out, the Ninth Circuit panel that decided Newdow I had to issue another opinion addressing whether Newdow still had Article III standing. That opinion's available in PDF here. It makes an interesting read.

Here's something to consider. As you know, standing goes to subject matter jurisdiction, so the Court can't reach the Establishment Clause question at all unless it first determines that Newdow has standing to pursue the case. Elsewhere in this thread you've expressed concern about the flood of EC litigation that might ensue if Newdow is allowed to stand. Wouldn't that potential floodgate open wider if the Court concludes that people in Newdow's position have standing to sue in federal court? If the primary concern is limiting the number EC lawsuits that federal courts have to deal with, the Court's best bet might be to hold that Newdow doesn't have standing and reverse on that basis.

Ultimately, though, I suspect you're right. The justices probably won't be able to resist the urge to use this case as a vehicle for making a major statement about substantive EC jurisprudence.

Dammit, I'm out of time again. More later.

Leviathan

I have two words for you: Soreen Kierkeegard.

Leviathan

WHen you continue to make these, honestly stupid, personal assumptions, I'm inclined to believe even further everything I have already stated about your "argumentative" style.

If you honestly believe there is not a debate about the religious foundings of this nation, and more specifically regarding the "controversy" surrounding the establishment of the First Amendment, I feel sorry that you once again have presented your "view of reality" as superior, and have dismissed anything that argues to the contrary. Likening this "debate over evidence" as being analogous to such *facts* as the earth revolving around the sun is absolutely positively an intellectual falsehood.

Leviathan

Stephen:

Really quickly:

1. Good citation to Teague. There isn't much room to argue there, especially when you cite my fav. S. Ct. Justice (Holmes).

2. I read the pdf file about Newdow, and don't you find it ironic that they cite, of all Circuits for persuasive authority, the Seventh Circuit! lol

3. Additionally, I've already mentioned the "evolving standards of decency" argument concerning deference. If you have a chance, I'm sure you're hella busy (I am too this week), take a look at Atkins v. Virginia. When I get your reply to the deference argument, I'm going to address that case. I'll sumarize really quickly: don't you find it odd that your more favorite Justices (liberals/moderates) were citing to the public's changing attitudes on the execution of the mentally handicapped? What was the dissent's reply? You shouldn't be looking at the majority will: that's not the job of the courts. Once again, we see contradictions in ideology.

Stephen Maturin

Okey dokey, back to business!

II. NINTH CIRCUIT'S APPLICATION OF LEE V. WEISMAN:

Yeah, that may well be a fair inference to draw from claims of being pressured. Nonetheless, the EC claim you're positing here goes nowhere in a big hurry unless the petitioner can persuade the court that actual Lee-type coercion exists.

lol. Well, it's always a good idea to go straight to the primary source. As for the rest, I have no doubt that the law review articles you've cited are biased, but I don't see that as a problem. After all, the vast majority of law review articles are "biased" in that the author takes a side and argues it. You haven't got much chance of getting published without doing that.

I haven't seen the petition Newdow filed in the Supreme Court, but his briefs in the lower courts were pretty well-written and well-focused. I doubt that he'll march into the Court and proclaim that the Ninth Circuit's ruling requires "complete obliteration of religion from public life." The Ninth Circuit's holding does no such thing, and Newdow will look mighty foolish if he argues otherwise.

There is indeed a distinction between formal prayer and Pledge recitation. The question is whether the distinction is legally significant. Lee involved a prayer, to be sure, but its rule applies to all state sponsored "religious exercise," a concept that encompasses a whole lot more than prayer. Thus, if the Pledge can be deemed a "religious exercise" - and, as we've already discussed, I think it can - then Lee applies.

Not at all. However, I submit that a practice need not go so far as to turn a schoolroom into a chapel in order to qualify as a religious exercise.

I have no doubt that addition of "under God" was motivated in part by political considerations, but I think there was much more to it than that. A couple of statements from the legislative history (as cited in Newdow) might be in order here:

More:

And here's what Ike had to say upon signing the amendment into law:

So then, what happened here was considerably more than simple nation-unifying or acknowledgement of historical facts. The 1954 Act was also about repudiating atheism, declaring ongoing dependence on God and having school kids proclaim our country's ongoing dedication to God. If those goals don't qualify as religious, then I can't imagine what goals would.

I apologize for addressing your posts piecemeal, Lev, but I'm running into time trouble again. I promise I'll get to your Atkins argument before too much more time passes.

enfant terrible

I only have a few minutes, so very briefly:

By far the most significant difference between Lee on one hand, and Sherman and [i]Newdow on the other, is that in the former, the children (much older, BTW) were only pressured to stand in respect while someone else recited a prayer, while in the latter they are actually pressured to join in reciting. Therefore, the claim in Newdow is far stronger than in Lee.

Perhaps it was successful motivational realpolitik, but at a deeper level and in the long run, it was terribly misguided (assuming it was honest). It only made the US similar to the USSR.

enfant terrible

I assume you meant Soeren Kierkegaard and just made a couple of typos. But isn't that the guy who stood at the church door and harassed the people not to enter?

Leviathan

Actually, its Soren, so we're both wrong. He was a Christian Existentialist, so I'm sure he was critical of the organized church, but he goes a long way in showing that my supposedly "contradictory" ideology is not even a contradiction at all.

There's a wonderful anthology out on all his works, edited by Bretall. I had to read it for class, and it was simply wonderful.

I'll have to get to the debate substantive another night.