VOLUME TEN NUMBER 1 When the Minority Needs to Be Heard

by Roberta K. Glassner, Esq.

Imagine you are on your town’s baseball team of 20 players. The mayor of the town has just named someone to be your new coach. In this made-up situation, your team gets to vote on whether or not it wants the mayor’s choice. To get the job, the coach needs to get a “yes” vote from a majority of the team, in this case at least 11 of the 20 players.

FALL2005 The U.S. SuprSupremeeme Court and the Road to Becoming a Justice by Roberta K. Glassner, Esq. justices should sit on the Court. The U.S. Congress makes that determination. John G. Roberts Jr. was recently sworn in as the 17th The number of justices on the U.S. Supreme Court Here’s how the team breaks down: chief justice of the U.S. Supreme Court. As chief justice, has changed six times. The first Court, under President the majority of the team, 12 players, Roberts, along with the other eight justices of the Court Washington, consisted of six justices. Between 1807 are all for the mayor’s choice. Eight will interpret the law based on the rights, freedoms and 1837, three more justices were added, bringing players are dead-set against him. and protections set forth in the U.S. Constitution. the total to nine. In 1863, during the Civil War, under The eight players, who do not want How did Chief Justice Roberts get to his place President Abraham Lincoln, Congress voted to increase the mayor’s candidate, know that on the Court? Let’s take a look at how the U.S. the Court to 10 members. if a vote were held on the spot the Supreme Court works and the road one takes In 1866, after the Civil War, during Andrew Johnson’s proposed coach would get a solid to be appointed a U.S. Supreme Court justice. presidency, Congress passed legislation that reduced the majority vote of 12 and the job number of justices to seven. The last change to the Court would be his. U.S. Supreme Court finds a home came in 1869 under President Ulysses S. Grant, when Can a minority of eight prevent In 1790, the first session of the U.S. Congress raised the Court’s size to its current a vote being taken? If the rules of Supreme Court was held in the Merchants number—nine. Several attempts since then the U.S. Senate were applied to your Exchange Building in New York City. Six to change the number of justices have team, it could. The minority players justices, appointed by President George been defeated. could filibuster in the hope of bringing Washington, sat on that first Court with about a compromise. John Jay as chief justice. For many years the Selecting a new justice justices were required to “ride circuit,” Article II, Section 2 of the U.S. Talk, talk, talk hearing cases twice a year in the different Constitution gives the president the Since the 2004 election, 55 judicial districts of the country. The Court authority to appoint justices to the U.S. Republican senators have formed would later move to Philadelphia. When Supreme Court “with the advice and the majority party in the 100-member Washington, D.C. became the nation’s capital, consent of the U.S. Senate.” When a vacancy U.S. Senate. The minority is made the Court met in various locations in that city. occurs on the U.S. Supreme Court, the president up of 44 Democratic senators and Finally, in 1935, the present Supreme Court presents his staff with a list of possible one independent senator. building was completed, and it became the candidates to fill the opening. The staff then In the U.S. Senate, Rule XXII permanent home of the U.S. Supreme Court. conducts research into each candidate’s permits members of the minority experience, legal writings, speeches and personal party to rise to their feet on the How many justices? background to determine the most qualified person. Senate floor and talk, or filibuster, While the U.S. Constitution calls for the establishment Once the president makes his choice, a written for hours or days to block a majority of a U.S. Supreme Court, it does not specify how many vote. Filibuster is derived from a Dutch CONTINUED ON PAGE 3 word meaning “pirate.” A filibuster is an attempt to block legislation by prolonged speaking. The idea behind Pledging Allegiance: One Nation Under... What? the process of filibustering is that by Pledging Allegiance: One Nation Under... What? taking up time and delaying the by Roberta K. Glassner, Esq. and Jodi L. Miller On Flag Day, June 14, 1954, which was at the height passage of a bill or the confirmation of the Cold War, the U.S. Congress added the phrase of a judicial nominee, the minority In the summer of 2002, a California court declared “under God” to distinguish the U.S. from what it called and the majority can come to a that the Pledge of Allegiance, which is recited at the “godless Communism.” At the time, some Americans compromise. In the alternative, by beginning of every school day in this country for close opposed this newest holding out, the minority can also to half a century, was unconstitutional. This decision by addition, believing that force the majority to withdraw the the Ninth Circuit Court of Appeals stirred up a storm it unnecessarily and offending legislation or nominee. of anger and protest that still rages today. unconstitutionally When a senator embarks on a introduced religious filibuster, he or she is not limited to The Origin of the Pledge belief into a purely discussing the relevant legislation or The original Pledge of Allegiance, written in 1892 patriotic expression. judicial nominee. He or she can speak by former Baptist minister Francis Bellamy, made no about anything and everything. In the reference to God. Bellamy wrote the Pledge for this Where the 1930s, Louisiana Senator Huey Long, country’s celebration of the 400th anniversary of controversy began a Democrat, recited Shakespeare and Columbus’ discovery of America. The Pledge of Dr. Michael read recipes for 15 hours straight Allegiance was designed to be a patriotic oath Newdow, an atheist to block passage of legislation he commemorating, in Bellamy’s words, “our national and the father of felt was unfair to the poor. history… the Declaration of Independence… the a second-grader in Constitution… and the meaning of the Civil War…” a California public CONTINUED ON PAGE 2 CONTINUED ON PAGE 4 Pledging Allegiance CONTINUED FROM PAGE 1

school, did not want his daughter reciting the Pledge of schools, would allow the voluntary recitation of the Allegiance with the words “under God” in it. He filed a phrase and would also allow recitation of the pledge in lawsuit against the state of California on the grounds other official settings. that “under God” represents the government’s endorsement of religious belief and has no place in Taking it to the Supreme Court This publication was made possible through funding public school. In his claim, Dr. Newdow asserted that his The case eventually made its way to the U.S. from the IOLTA Fund of the Bar of New Jersey. daughter is injured when forced to listen to her teacher Supreme Court, where Dr. Newdow, who also holds a lead a pledge that declares the existence of God when law degree, argued his case himself. Solicitor General Angela C. Scheck EXECUTIVE EDITOR her father believes He does not exist. Theodore B. Olson defended the constitutionality of In a 2-1 decision, a three-judge panel of the Ninth the Pledge of Allegiance. Jodi L. Miller Circuit Court of Appeals determined that when the During oral arguments before the justices of the EDITOR phrase “under God” is recited in a public school, it Supreme Court, it was suggested to Dr. Newdow that is a violation of the separation of church and state the “under God” phrase had over the years attained a Editorial Advisory Board guaranteed by the establishment clause of the First civic, broader meaning and included virtually everyone. Stuart M. Lederman, Esq. Amendment to the U.S. Constitution. The “I don’t think I can include “under CHAIR establishment clause says, “Congress shall make God” to mean “no God,” Dr. Newdow no law respecting an establishment of religion or answered. “I deny the existence of God John J. Henschel, Esq. prohibiting the free exercise thereof…” and government needs to stay out of Louis H. Miron, Esq. Judge Alfred Goodwin of the Ninth Circuit Court this business altogether.” Carole B. Moore of Appeals wrote in his opinion, “The establishment Solicitor General Olson argued the Steven M. Richman, Esq. clause guarantees, at a minimum, that government “under God” phrase in the Pledge did Thomas A. Zeringo may not coerce anyone to support or participate in not rise to the level of religious expression religion or its exercise or otherwise act in a way and indicated that the Ninth Circuit Court New Jersey State Bar Foundation which establishes a state religion or religious misunderstood the Pledge of Allegiance. He went faith, or tends to do so.” on to say that the phrase is a “civic and ceremonial Board of Trustees After the ruling became the shot heard round acknowledgement of the indisputable historical fact that John J. Henschel, Esq. the world, former Attorney General caused the framers of our Constitution and the signers PRESIDENT John Ashcroft asked for a review of of the Declaration of Independence to say that they had the case by the entire 11-judge the right to revolt and start a new country.” Olson Ellen O’Connell, Esq. panel of the Ninth Circuit Court claimed that the framers believed that God gave FIRST VICE PRESIDENT of Appeals. The court refused to them that “inalienable right.” Mary Ellen Tully, Esq. reconsider the ruling but did Dr. Newdow brought the argument back to his SECOND VICE PRESIDENT amend its decision. Stopping short daughter saying, “As her father, I have a right to know of calling the “under God” phrase that when she goes into the public schools she’s not Richard J. Badolato, Esq. unconstitutional, the amended going to be told every morning to stand up, put TREASURER decision applied only to public CONTINUED ON PAGE 4 Stuart M. Lederman, Esq. SECRETARY TRUSTEES Mary M. Ace What’s the Matter with Our Motto? William G. Brigiani, Esq. Like the “under God” phrase in the Pledge of “It’s been tested for its constitutionality in federal Allen A. Etish, Esq. Allegiance, the United States’ national motto, “In God court,” Michigan Congressman Stephen Ehardt told Stuart A. Hoberman, Esq. We Trust,” has come under fire from those who believe CNN in 2002. “It’s secular. It’s not a religious statement Lisa H. James-Beavers, Esq. a push to place posters with the motto in all public and it’s something we should be proud of,” he said. Peggy Sheahan Knee. Esq. schools violates the separation of church and state Pennsylvania’s legislation was referred to its Ralph J. Lamparello, Esq. and is an attempt to bring religion into the schools. Education Committee in March 2005, and while it may Edwin J. McCreedy, Esq. Several states, most recently Pennsylvania, have be the latest state to consider legislation, it is by no Louis H. Miron, Esq. introduced legislation, called the National Motto means the first. Michigan and Mississippi have laws in Carole B. Moore Display Act, that would allow school districts to display place and the Legislatures in South Carolina, Virginia, Lynn Fontaine Newsome. Esq. the national motto in colorful 11 x 14 inch posters Mississippi, Ohio, Utah and Louisiana are all considering John H. Ogden, Esq. suitable for framing. The driving force behind the similar legislation. movement is the American Family Association (AFA), In 2001, New Jersey Senator Leonard T. Connors Jr. Wayne J. Positan, Esq. a fundamentalist Christian organization, whose stated introduced legislation that would “require the New Steven M. Richman, Esq. mission is to “equip citizens to change the culture to Jersey Department of Education to provide every public Richard H. Steen, Esq. reflect Biblical truth and traditional family values.” school with either a durable poster or a framed copy Margaret Leggett Tarver, Esq. According to the Pittsburgh Post-Gazette, if a school of the national motto to be displayed in a prominent Ronald J. Uzdavinis, Esq. district cannot afford the posters or cannot pay for place within the school.” The original legislation died in Leonard R. Wizmur, Esq. them with taxpayer dollars, the AFA sometimes committee, however, Senator Connors reintroduced it donates them. in the 2004 legislative session. The bill was referred to “America has a rich Christian, and really religious the Senate Education Committee and, if not approved, © 2005 New Jersey State Bar Foundation heritage,” Tim Wildmon, an officer of AFA, told CNN will die December 31 with the end of the legislative in 2002. “If the president of the United States can be calendar. Senator Connors, who believes the legislation sworn in by placing his hand on the Holy Bible, will pass eventually, says the motto has nothing to do certainly kids can know what the national motto is.” with church and has every intention of reintroducing Catch Us on the the legislation in 2006 if it is not approved by History of national motto December. Web and Read “In God We Trust” was first inscribed on the two- Stephen Latimer, a New Jersey constitutional law cent coin in 1864 during the Civil War at the request attorney, said that if the legislation were mandated it The Legal Eagle Online of Salmon P. Chase, the secretary of the U.S. Treasury might violate the establishment clause of the U.S. at the time. Chase was moved to do this by a letter Constitution, which prohibits the favoring of one Back issues of The Legal Eagle he received from a Pennsylvania reverend asking for religion over another. The way New Jersey’s bill is since its inception in 1996, can be the recognition of “the Almighty God in some form currently written, however, it would not be a violation, found on the New Jersey State on our coins.” Eventually, “In God We Trust” was placed Latimer said. on all U.S. coins and in 1957 the motto first appeared Although the American Civil Liberties Union has not Bar Foundation’s Web site at on paper currency, after the U.S. Congress passed a formally challenged the law in any state, some chapters www.njsbf.org. law ordering it in 1955. of the organization have spoken out. Most notably, On July 30, 1956, Congress passed a law Larry Spalding of the organization’s Florida chapter While you’re there, check out establishing “In God We Trust” as the official motto of who told USA Today, “This is no more than a means other interesting and fun stuff in the United States. This law did not repeal the United to get religion in the schools through the back door.” States’ previous motto, E Pluribis Unum, a Latin phrase Regarding New Jersey’s pending legislation, our Students’ Corner. There is also meaning “From Many, One.” Deborah Jacobs, executive director of the ACLU-NJ, useful information for teachers noted that a non-religious slogan that more fully about other Legal challenges represented the whole community might be a better Foundation According to CNN, the use of “In God We Trust” choice to put in public schools. school- has survived several federal court challenges, one by “There are ways of expressing sentiment in public an appeals court in Denver. The U.S. Supreme Court schools in terms of showing we are a nation united based has so far declined to hear a case regarding the that might exclude less people,” Jacobs said. 2 programs. national motto. — Jodi L. Miller The U.S. Supreme Court CONTINUED FROM PAGE 1 nomination is sent to the Senate for its “advice cases it will decide based on the importance of and consent.” the constitutional issue involved. For example, A Controversial Nominee Although the U.S. Constitution does not controversial cases that affect the rights of all Although Chief Justice Roberts seemed require experience as a judge or lawyer or any Americans, such as free speech, discrimination, to sail through the confirmation process, legal experience at all to qualify for appointment privacy rights or criminal justice tend to reach that is not always the case with Supreme to the U.S. Supreme Court, all the justices in the the High Court. Court nominees. history of the Court have had a legal background. Each year, between the first Monday in In 1987, President Ronald Reagan The framers of the U.S. Constitution, October and the end of June, the U.S. Supreme nominated Robert Bork, a federal appeals determined to prevent any president from Court hears testimony and adjudicates court judge, to fill the U.S. Supreme Court creating a Court reflecting his own personal approximately 82 cases. Before the justices enter seat vacated by Associate Justice Lewis or political views, provided for shared power the courtroom, each justice shakes hands with Powell. Judge Bork was well-known for between the president and the Senate. the other eight. The tradition of the “conference his intelligence, legal experience and Under this shared power, the Senate has handshake” represents a shared commitment to outspoken conservative views. He the constitutional right to vote to accept or the U.S. Constitution and the law despite declared himself a “strict constructionist,” reject the person the president nominates. In differences of opinion in individual cases. one who believes U.S. Supreme Court addition, to assure the U.S. Supreme Court’s While the U.S. Constitution does not require decisions must be based only on the law independence from political influences, the the justices to explain their decisions in writing, explicitly stated in the U.S. Constitution. framers of the U.S. Constitution provided that the U.S. Supreme Court long ago elected to issue Judge Bork told the Judiciary justices of the Court serve for their lifetime or written opinions explaining and supporting their Committee that the “original intent” until they wish to retire. decisions. While one justice is appointed to write of the founders, as written in the U.S. the majority opinion or the “opinion of the Constitution, is the law of the land. He The confirmation hearings court,” each of the other eight justices may write expressed his disagreement with the “living For the first week after the nomination, separate opinions as well. Those who agree with Constitution” view of “activist” judges who the nominee introduces him or herself to the majority may add to the opinion, while those interpret the provisions of the Constitution members of the Senate at informal meetings. who do not agree may state their reasons in to make “new law” that meets changing Then the formal confirmation process begins. what is known as a dissenting opinion. conditions and new situations in society. The nominee is called to testify at length The opinion of the Supreme Court is printed Robert Bork’s appearance before the before the 18-member Senate Judiciary and bound in a set of books that can be found Senate Judiciary Committee was the most Committee. The Senators’ questions focus in every lawyer’s library. The decision in a U.S. heated, bitter and partisan confirmation on the candidate’s personal and legal positions Supreme Court case is considered a precedent, hearing in the history of the U.S. Senate. on controversial issues and prior rulings. which means that it is the law for every future While many senators agreed with Judge Then, before it votes on the nominee, the case involving the same constitutional issue. Bork, the majority found his views too committee opens the hearings to give special inflexible. The committee did not interest groups an opportunity to express their Judicial review recommend his appointment to the Senate support of, or opposition to, the candidate. In The U.S. Constitution is designed to and he was rejected by a full Senate vote recent years, many of these groups have also provide and protect the balance between the of 42-58, the largest margin of defeat for run active campaigns on television and in the government’s need to maintain an ordered any nominee. press for or against a nominee. society and a citizen’s individual right to freedom. After all the questioning of the candidate The complex role of the U.S. Supreme Court is — Roberta K. Glassner has ended and the special interest groups have to protect that balance by reviewing laws within been heard, the Judiciary Committee votes to the meaning of constitutional protections. The recommend or reject the nomination to the process by which the justices determine whether full Senate. laws conflict with the U.S. Constitution is known unanimous vote by all nine justices to declare as “judicial review.” such laws unconstitutional; limiting a justice’s Advice and consent Although judicial review is not a provision of term to 10 years; and requiring that justices Different views exist as to the role of the the U.S. Constitution, both Alexander Hamilton retire at the age of 70. None of these reforms Senate in the “advice and consent” process. and James Madison, two of the country’s original have been enacted. In fact, it has been 130 years Some maintain that the Senate’s proper role founders, wrote that judicial review was crucial since a proposed reform of the U.S. Supreme is to confirm the president’s choice unless the to ensuring that rights protected by the U.S. Court has passed. nominee is clearly unqualified. Others believe Constitution would not be violated. To guarantee that the Senate has the constitutional right that laws are not passed for political reasons or Two openings on the Court to reject the candidate if it finds simply to satisfy the demands of one group over In June, at the end of the 2005 term, anything in his or her background, another, the framers argued that a Associate Justice Sandra Day O’Connor, the temperament, legal history or neutral, independent first woman justice on the U.S. Supreme Court, ideology that would affect the judiciary should have announced her retirement after 24 years on the ability to decide cases strictly on the power to bench. Two months later, in August, the chief the law, without prejudice declare such laws justice of the Court, William Rehnquist, died. or a predetermined unconstitutional. Chief Justice Rehnquist served on the Court for position. With the 1803 32 years, 20 years as chief justice. Once the review case of Marbury v. This is only the second time in the history of is completed, the Madison, the U.S. the U.S. Supreme Court that two vacancies have Senate Judiciary Supreme Court occurred at the same time. These are the first Committee usually recognized that openings on the Court in 11 years, the longest recommends the candidate Article III of the U.S. in the Court’s history. to the full Senate, the Senate Constitution granted With Justice O’Connor’s retirement and the votes its approval and the the Court an “implied passing of Chief Justice Rehnquist, a nominating new justice is seated on power” of judicial process for their replacements was set in motion the Court. However, review. In this that is at once historical, legal and political. It is this isn’t always the landmark case, the a process that involves all three branches of the case. Since 1789, the Court began to define government — executive, legislative and judicial. Senate has rejected 27 what vesting “the judicial In July 2005, the process began with of the 148 Supreme Court power” meant, with Chief President George Bush’s nomination of Roberts, nominations. When a nominee is rejected, Justice John Marshall declaring that judicial a federal appeals court judge, to fill the seat the president names a new candidate and review of acts of Congress was necessary to vacated by Justice O’Connor and become the the process starts all over again. provide “checks and balances” on the legislative 109th justice to sit on the Court. Following Chief and executive branches of government. Justice Rehnquist’s death, the president elevated Cases heard For more than two centuries, justices of the Roberts’ nomination from associate justice to Cases arrive at the U.S. Supreme Court, or U.S. Supreme Court have derived the prestige chief justice. Chief Justice Roberts was confirmed High Court as it is sometimes called, only after and authority from their ability to maintain their by a Senate vote of 78-22. He took his seat as they have been heard and ruled on in lower state independence from the two other branches of chief justice on October 3, 2005, the day the and federal courts. If the appeal from a lower government, as well as from the presidents who U.S. Supreme Court opened its session. court ruling is accepted by the High Court, the appointed them. The nomination process began again on that justices make the final decision on the case and day with President Bush’s nomination of White that decision becomes the law of the land. Reform proposals House Counsel Harriet Miers to fill Justice The U.S. Supreme Court is not required to Those who take issue with the power of the O’Connor’s seat on the Court. Only time accept every appeal submitted to it. Each year, U.S. Supreme Court have proposed changes to will tell if, and when Miers will be more than 6,500 civil and criminal appeals are it. Proposed reforms have included completely confirmed and begin her tenure filed with the U.S. Supreme Court, a number too taking away the Court’s power to declare any law with the Court. overwhelming to be heard. The Court selects the passed by Congress unconstitutional; requiring a 3 When the Minority Needs to Be Heard CONTINUED FROM PAGE 1 Senator Strom Thurmond of South Ending a filibuster If there are fewer than 60 filibuster against a judicial Carolina, a Republican, who still Those in the majority party, with senators in the majority party, a nominee, is unconstitutional. holds the Senate record for an enough senators to win a vote, successful cloture vote is not likely A simple majority of 51 would individual speech, filibustered dread having to sit through a unless members of the opposing be needed to approve the vice against the Civil Rights Act of filibuster and want it over as party join the majority and vote president’s ruling and the right 1957 for 24 hours and 18 minutes. quickly as possible or, better yet, for a filibuster’s end. If a cloture to filibuster would be ended. Other Southern senators picked up not to take place at all. Their vote is taken and fails, the This drastic measure is called where he left off and continued to objective is to put their bill or majority party is usually faced the nuclear option because it filibuster for a total of 74 days, nominee before the full Senate for with withdrawing the candidate would not only permanently another Senate record. While the an up or down vote, requiring a or putting off the bill until another eliminate the minority’s right to filibuster went on, all other simple majority of 51 votes, which session rather than have the filibuster a judicial nominee, it business in the Senate came to a they know can be obtained. filibuster continue. would also virtually guarantee that complete stop until, ultimately, a In 1917, at President Woodrow the majority party would have its compromise was reached and the Wilson’s suggestion, the Senate The nuclear option way in every vote. Every judicial Civil Rights Act was passed. passed a rule where a two-thirds Faced with the difficulty of nominee could be approved by a Historically, the filibuster has vote of the Senate could end a winning a cloture vote, the present simple majority of 51 senators, played a crucial role in maintaining filibuster. In other words a senator Republican Party, with its majority no matter how strongly opposed the system of checks and balances can call for a full vote of the of 55 members, has devised a new by members of the minority. in government and between the Senate and if 67 (two-thirds) course of action to prevent a While some people may say that minority and majority parties in the senators agree to end the filibuster, filibuster on judicial nominees. the majority should rule, and in Senate. This dramatic form of the bill or judicial nomination According to The Washington Post, some cases it does, our founding protest, the last resort of an would go to the Senate floor the plan, labeled “nuclear option,” fathers found a way to give the opposing minority, has long been for a simple up or down vote. This involves a Republican senator minority a voice in government. considered essential to avoid the formal procedure is called cloture. making a motion to the presiding dangers of one-party control. In 1975, the rule was amended to officer of the Senate, Vice require only three-fifths of the President Dick Cheney, declaring Senate or 60 senators. that Rule XXII, which permits a

Pledging Allegiance CONTINUED FROM PAGE 2 GLOSSARY her hand over her heart, and say your father is wrong, brief that the phrase served as a reminder that which is what she’s told.” “government is not the highest authority in human In his closing statement, Dr. Newdow spoke of the affairs” and that “inalienable rights come from God.” principle of separation of church and state. “I’m hoping Jay Sekulow, chief counsel for the American Center adjudicate — to act as a this Court will uphold this principle so that we can for Law and Justice, which advocates for religious judge. finally go back and have every American want to stand rights, told The New York Times after the Court’s up, face the flag, place their hand over their heart and decision came down, “the Court has removed a dark appeal — legal proceeding pledge to one nation, indivisible, not divided by religion, cloud that has been hanging over one of the nation’s where a case is brought from a lower court to a higher court with liberty and justice for all.” most important and cherished traditions—the ability to be heard. of students across the nation to acknowledge the fact What the Supreme Court said that our freedoms in this country come from God, not atheist — a person who does In considering the case, the justices questioned Dr. the government.” not believe there is a God. Newdow about whether he had legal standing to bring A group of 32 Christian and Jewish clergy members brief — a formal, written the lawsuit. A parent does have the right to bring a submitted a brief in opposition of the Pledge. Their summary of relevant facts lawsuit on behalf of his or her child; however, Dr. brief states that if schoolchildren are supposed to recite submitted to a court of law Newdow, who never married his daughter’s mother, the words, “under God” with no meaning behind the in a legal case. does not have legal custody of the child. In addition, words, then the government essentially “asks millions the child’s mother told the Court that her daughter of children to take the name of the Lord in vain.” cloture — a procedure to stop does not have a problem with reciting the “under God” In response to the Court’s ultimate decision in the debate in a legislative body so phrase in the Pledge and indicated that she is raising case, Rev. Barry Lynn, executive director of Americans that a vote can be taken. her daughter with a religious upbringing. United for the Separation of Church and State, coerce — to influence another The Court ultimately decided that Dr. Newdow did expressed his disappointment to The New York Times person’s choices in a negative not have sufficient legal standing to bring the lawsuit. saying, “Students should not feel compelled by school way. As a result, the Court dismissed the case without an officials to subscribe to a particular religious belief in official ruling of whether the Pledge of Allegiance, as order to show love of country.” dissenting opinion — a written now, is constitutional or not. Because a court statement written by a judge does not have jurisdiction in a case where the plaintiff Where the issue stands that disagrees with the opinion lacks legal standing, the decision of the Ninth Circuit So, does the establishment clause include atheists? reached by the majority of his Court of Appeals is also invalid. Frank Askin, a professor at Rutgers Law School— or her colleagues. While all eight justices (one justice had recused or Newark and director of the Rutgers Constitutional fidelity — faithfulness. disqualified himself from the case) voted to reverse Litigation Clinic, believes it does, saying not only does the Ninth Circuit’s decision, three of the justices said the establishment clause prohibit government from ideology — a way of thinking they would have allowed Dr. Newdow to sue on his favoring one religion over another religion, it also that is characteristic of one daughter’s behalf but would have ruled against him prohibits the favoring of religion over non-religion. political theory. and upheld the Pledge of Allegiance as written. Hackensack attorney Stephen Latimer, who practices jurisdiction — authority to “Reciting the Pledge, or listening to others recite constitutional law, said he thinks the “under God” interpret or apply the law. it, is a patriotic exercise, not a religious one,” The phrase is unconstitutional because it “chooses a late Chief Justice William Rehnquist said. “Participants particular form of belief over others” and does not majority opinion — a promise fidelity to our flag and our nation, not to any allow for the inclusion of other religions such as statement written by a judge particular God, faith or church,” he said. Justices Sandra Buddhism or Hinduism. Latimer further stated that that reflects the opinion Day O’Connor and Clarence Thomas agreed with him. forcing someone who does not believe in the existence reached by the majority of his or her colleagues. After the Court’s ruling, Dr. Newdow told CNN, of God at all to acknowledge God would be a violation “This issue is not about whether or not people are of the establishment clause. opinion — a document forced to say anything. The issue is whether or not When his case was dismissed in June 2004, Dr. containing the reasons why government is taking a position,” he contended. “The Newdow vowed to re-file and eventually bring the case a decision was rendered. establishment clause, unlike any other clause in the Bill back to the U.S. Supreme Court. On January 3, 2005, partisan — someone who of Rights, talks only about government. Government is he filed a lawsuit in a Sacramento federal court on supports a party or cause with not allowed to take a position with regard to religion.” behalf of three parents and their children. Dr. Newdow great devotion. again tried the case. In September, a federal judge A country divided ruled that the “under God” phrase in the Pledge is plaintiff — person or persons The constitutionality of the Pledge of Allegiance unconstitutional, claiming he was bound by the Ninth bringing a civil lawsuit against sparked a national debate. The attorneys general of all Circuit Court of Appeals ruling in 2002. The issue will another person or entity. 50 states, the National School Boards Association and likely be in the courts for years as the U.S. Justice precedent — a legal case that the National Education Association all submitted briefs Department is continuing to fight the ruling. will serve as a model for any to the Court in support of the Pledge as written. Askin and Latimer do not think Dr. Newdow has future case dealing with the The Christian Legal Society, comprised of much of a chance if the case goes to the U.S. Supreme same issues. lawyers, judges and professors, also Court, both believing that the Court will rule against submitted a brief supporting the “under him and the other plaintiffs. reverse — to void or change 4 God” phrase. The organization stated in its a decision of a lower court.