Elk Grove School District v. Nedow
Can a school district start the day with the Pledge
of Allegiance without violating the First Amendment?
Decided June 14
First Amendment law has been largely incompatible with
federalism since, well, the incorporation of the Fourteenth Amendment. In this
latest twist, the Court considered whether the Elk Grove School
District--located outside of Sacramento--has the power to conduct a group Pledge
of Allegiance to kick things off in the morning. While school rules and patriotic exercises are, and always
have been, matters of local concern, the mention of the word "God" in
one of the stanzas was enough to convince concerned parent (and committed
atheist) Mike Nedow-- and the 9th Circuit -- that a religious
"establishment" was underway.
Justice Stevens, writing for a 5-4 Court, took the ball and
punted--the First Amendment questions here are irrelevant, he writes, since Mike
Nedow has no standing (his wife has custody, and full parental rights, over the
Pledge-inflicted student.) In an interesting, and in the words of the Chief,
"novel" application of standing rules, Justice Stevens announced a
special deference to state law when family law is at
issue. (Never mind that the 9th Circuit--who would be typically deferred to in
its interpretation of state law--thought Nedow had clear standing.) "When hard questions of
domestic relations are sure to affect the outcome, the prudent course is for the
federal court to stay its hand rather than reach out to resolve a weighty
question..."
The silliness of this
standard and any claims to self-restraint aside, Nedow may be of greatest interest to our readers because
of Justice Thomas' concurring opinion. According to Justice Thomas, the
Establishment Clause is a "federalism provision," that is, it
protects the power of the states, not the rights of aggrieved citizens. Unlike
the Free Exercise Clause, its logic fits uncomfortably with incorporation. The
national courts, at the very least, should tread lightly when settling disputes
in this area. Well, that's one vote for the admirable task of "beginn(ing) the process of
rethinking" law in this tortured area.
Decision
here
Ms.
Banning's Amicus Brief, supporting Elk Grove
9th
Circuit's Opinion (as amended February 2003)
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