This just in
From How Appealing comes news that the full U.S. Court of Appeals for the Ninth Circuit has decided to let stand a previous decision by a three-judge panel of that court that the phrase "under God" in the Pledge of Allegiance is unconstitutional. Thus, the active members of the court voted not to review the earlier opinion by Judge Ted Goodwin, for whom I worked when I first moved to Oregon nearly 25 years ago.
I think this means that unless the court "stays the mandate" in the case, it will soon be illegal for public school students to say the pledge in its current form, at least on the West Coast.
Usually when the Ninth Circuit denies a motion for rehearing, it does so without comment. Not this time! Really letting it rip in a lengthy dissent is Portland's own Judge Diarmuid "Close the Post Office" O'Scannlain, who gets hotter than a right-wing blogger, and raises his colleagues' blood pressure to boot. One colleague writes that Judge O'Scannlain's views are "disturbingly wrongheaded."
I can't wait to hear and read the Supreme Court dialogue on this one. Meeeeeoowwwwwwwwww!!!
What a fun weekend we have ahead! Let the name-calling and political posturing recommence!
UPDATE, 3/1/03: Leave it to Howard Bashman to educate us all on the timing of the Ninth Circuit's mandate and the procedures by which it can be stayed. How Appealing really is an internet treasure.
UPDATE II, 3/1/03: Egads, Howard has linked here, as well as to some much more serious academic commentators, and now I am exposed as an intellectual lightweight, content only to cackle with cynicism. Ah, well. First Amendment jurisprudence in connection with religion has always been a mess. Anyone seeking to find consistent doctrine in the area is likely to come away disappointed, wherever they look. Wish I had something of greater substance to contribute. But I do derive perverse enjoyment from one Republican appointee in Oregon attacking another with such vehemence! The Nixon Ninth Circuit vs. the Reagan Ninth Circuit -- he he!
UPDATE III, 3/2/03: I actually had a substantive thought about this today: What if the Supreme Court decides that Newdow is not suitable for adjudication because the plaintiff (the student's father) lacks standing? Presumably, in that case the judgment of the court below would be vacated. Does that mean the case will have no precedential value, even in the Ninth Circuit? If Mr. Newdow lacks standing, will West Coast public schools still be able to say the pledge in its current form? A valued colleague informs me this evening that they would, because a vacated decision is a nullity -- as if it were never rendered.
Until the next case, of course. And if a different Ninth Circuit panel gets it next time? Holy moly.
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