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Monday, June 14, 2004

It's official! There will be no culture war over "under God" in time for the election.

The Supreme Court has just ruled that atheist Michael Newdow has no standing to represent his daughter in their challenge to the Pledge of Allegiance. That was always a weak spot in Newdow's position, and thus comes as no surprise in and of itself. But consider this: three justices (Rehnquist, O'Connor, Thomas) wrote to add their opinion that the pledge was constitutional. Such holdings are called "obiter dicta" and are flagrantly improper on matters of constitutional importance.

Moreover, it gives us a clearer view of how the Court came out. Four justices (the concurrence plus Scalia, who recused himself after shooting off his mouth) concluded that it was constitutional. That leaves five justices that were almost certainly ready to hold that "under God" was unconstitutional. But in what might be the reverse of Bush v. Gore, those five chose not to issue that ruling, probably because it would ignite the "culture war" for the presidential election. If that speculation is true -- and I have no proof whatsoever-- the "obiter dicta" choice of the Rehnquist concurrence makes more sense. The concurrence may have been issued to make clear that the Court would have overturned the Pledge of Allegiance if it had not found a standing problem. It's an attempt to shine some light on the true feelings of the Court, and to give "The Base" proof that the Court is filled with "activist judges" ready to lean "leftward" yet again.

It's gonna be a feisty month. Who knows what will happen when the Gitmo cases get handed down?



 10:03 AM

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