Thursday, September 15, 2005

MSM Reports "Pledge Unconstitutional", Misses Bigger Story

Wednesday, the press reported that Judge Lawrence Karlton ruled that the words "under God" were unconstitutional as violations of the Establishment Clause of the First Amendment. The news was of broad enough interest that it quickly made its way into the record of questioning at the John Roberts confirmation hearing. But, that's apparently only the start of the story.

I logged onto the public case documents system for the United States District Court for the Eastern District of California to find the opinion. I accessed it without any trouble and started skimming it for the rationale on the merits that would frame the debate.

However, I found myself completely baffled after the first reading. Apparently, Judge Karlton had decided that the Supreme Court's prior dismissal of Newdow's case for lack of "prudential standing" had left in place the Ninth Circuit precedent holding the words "under God" in contravention of the United States Constitution.

How could that be? Typically, if a claimant has no standing, that's the end of the ballgame; it's a non-case. Where was this judge drawing the distinction?

I examined this section a little more closely, finding what appeared to be a severe stretch of the precedent from a single SCOTUS case, and a single case from the Eleventh Circuit, a court clear across the country with no binding authority on Karlton's court [Edited the next day to add: and a single Ninth Circuit case that appears limited to an altogether different factual scenario]. From that inference on an inference, it appears that Karlton would hold that the previous merits ruling had been left untouched. I was flabbergasted.

I set the opinion aside for a couple of hours to try and work out the problem in my head. Standing problems (and everything arising from them) can be incredibly diffcult. Nevertheless, my gut told me that something was just not quite right. Did Karlton let his conscience dictate the result, then try to find a way to support his decision? To my mind, basing a result solely on a judge's personal predilictions -- no matter how compelling -- is an example of the highest order of judicial activism. It's a term I have grown to hate as meaningless, but what else could I call this? But, even if that was the case, why would he do this in (what I had learned was) a defense motion to dismiss Newdow's claim? It's a long way from "Plaintiffs have no case," to "Plaintiffs prevail without offering any evidence." Why would this judge not wait, at the least, until summary judgment when arguments on the merits of the present case would have been issued?

I could not just drop these nagging questions. I picked up the opinion again. This time, I finished what I had started earlier. The devil is in the detail, or here, the footnotes. In footnote 21, after noting that adult legislatures may open sessions with prayers, but students at a high school graduation may not:

This court is, of course bound by the distinction noted above, but as the saying goes, it is not gagged. The cramped view of the Establishment Clause underlying the distinction between Marsh and Lee ignores a primary function of the First Amendment; namely, to act as a bulwark barring the introduction of sectarian division into the body politic, and thus advancing the ideal of national unity.

[Emphasis mine.] Note the lack of a citation on the last point. Judge Karlton, it seems, has an axe to grind -- one belonging for purposes of this litigaton to him alone -- with his bosses in Washington. And he is letting them know of his beef in a published opinion of his court.

We arrive at Judge Karlton's order:

For all the foregoing reasons, the court ORDERS as follows:

1. Defendants motions to dismiss the claim as to the recitation of the Pledge in a classroom is DENIED; and

2. As to all the other causes of action, the motion is GRANTED.


As soon as I see that, though overlooked in every press report I had read, Judge Karlton had wiped most of the Plaintiffs' claims, I also notice a substantial footnote hanging at the end of the opinion:

22 This court would be less than candid if it did not acknowledge that it is relieved that, by virtue of the disposition above, it need not attempt to apply the Supreme Courts recently articulated distinction between those governmental activities which endorse religion, and are thus prohibited, and those which acknowledge the Nations asserted religious heritage, and thus are permitted. As last terms cases, McCreary County v. ACLU, 125 S.Ct. 2722, 2005 WL 1498988 (2005) and Van Orden v. Perry, 125 S.Ct. 2854, 2005 WL 1500276 (2005) demonstrate, the distinction is utterly standardless, and ultimate resolution depends of the shifting, subjective sensibilities of any five members of the High Court, leaving those of us who work in the vineyard without guidance. Moreover, because the doctrine is inherently a boundaryless slippery slope, any conclusion might pass muster. It might be remembered that it was only a little more than one hundred ago that the Supreme Court of this nation declared without hesitation, after reviewing the history of religion in this country, that this is a Christian nation. Church of the Holy Trinity v. United States, 143 U.S. 457, 471 (1892). As preposterous as it might seem, given the lack of boundaries, a case could be made for substituting under Christ for under God in the pledge, thus marginalizing not only atheists and agnostics, as the present form of the Pledge does, but also Jews, Muslims, Buddhists, Confucians, Sikhs, Hindus, and other religious adherents who, not only are citizens of this nation, but in fact reside in this judicial district.

[Emphasis mine.] Suddenly, things are much clearer. He did not want to deal with the precedent created in the two Ten Commandments cases last term, in which only Justice Breyer was in the majority for both, because he deemed it unworkable and he apparently wanted to make very clear his displeasure with the present condition. Waiting until summary judgment would have deprived him of this unique soapbox.

In fact, he probably recognized that there is a pretty good chance that this present case will be reversed and remanded on appeal. In retrospect, his argument that the Supreme Court let stand the former Ninth Circuit precedent is sufficiently feeble that it is reasonable to believe that not even the oft-reversed Ninth will embrace it.

In the end, this judge may well have prolonged litigation to make a point about his disdain at the state of the law, effectively compelling both sides to suffer increased legal costs.

Except, perhaps, for Mr. Newdow himself. After all, does he really do much else anymore besides litigate this single issue without much lasting success?

UPDATE: Doug at In The Agora expresses some good criticisms of my argument and notes, perhaps correctly, that I oversimplified the standing issue above.

UPDATE 2: Howard Bashman issues a parallel concurring opinion that is far more artful (and informed through experience) than my own. Patterico agrees, as does Eugene Volokh, though the latter is a bit more circumspect about his forecasting abilities.


Blogger Bostonian Exile said...

Apologies to the Middle America Progressive, whose questions were lost in a Blogger hiccup. I will attempt to answer them to the best of my recollection and ability.

2:25 PM  
Blogger Midwestern Progressive said...

No problemo! The general gist of the question was....

Do you believe (as I do) that, the legal positioning of this issue notwithstanding, that public schoolchildren should not recite the Pledge in school as long as the words "under God" remain in the Pledge's text?

How do you feel about Congress and the current administration getting behind a movement to remove the words that were inserted by a Congress and then-administration in the 1950's? (Heh, fat chance of that......)

I personally feel that it was an act of unnecessary folly to insert the words in the 50's, and if it takes a self-serving grandstander like Newdow to correct that wrong now, fine by me....

Anyway, I was just curious to see what your opinion was on a personal level rather than a legal one.....definitely not trying to be confrontational here!

5:11 PM  

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