Monday, June 14, 2004


Ah, yes - when faced with a difficult issue of constitutional law better to . . . . kick it out on a technicality! Like - wait, I know - standing! Sure it's less fun to say than "mootness," but it gets us out of the fire just as fast.

So the Supreme Court ruled that the atheist father suing over his daughter having to say "under god" isn't enough of her father - in the legal sense - to bring a claim on her behalf. The Chief Justice, O'Connor, and Thomas said that the pledge as recited by students doesn't violate the Constitution - but that's what we in the industry like to call "dicta."

"Dicta" is a fancy schmancy word for "this would be precedential if we wanted it to be but since we don't and we aren't actually deciding the case on this issue we threw these words in to give first-year law professors something by which to explain 'dicta.'"

So while it does overturn the previous ruling that the pledge was an unconstitutional blending of church and state - it only kinda overturns it. It overturns it by not addressing it. It's a courtroom version of a mulligan.

Other highlights of the case include Solicitor General Ted Olson's argument that "under God" is an "official acknowledgment of our nation's heritage," likening it to "In God We Trust" on our money.

It's good when high ranking officials acknowledge that our country dates all the way back to . . . the 1950s.

"under God" dates back to about the same time - 1954, to be exact, according to the article. The pledge itself is barely older than that - it was adopted in 1942 during WWII.

At any rate - the Administration and pro "under God" people everywhere will claim a huge victory - but it's really not so big. If someone with standing filed suit, we have only a semi-forceful indication of what the outcome would be. Wonder what the silent-here Scalia would've said. So for now, this case is closed - in the weeniest of ways.

"Weeniest" is not a legal term. Yet.

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