The Merits in Newdow

The collection of concurrences on the merits are quite interesting.  The Chief's opinion adopts the SG's argument -- darn-near-preposterous, IMHO (and that of Justice Thomas!) -- that the Pledge is OK in schools because "under God" is "not endorsement of any religion," but instead "a simple recognition of the fact [that] '[f]rom the time of our earliest history our peoples and our institutions have reflected the traditional concept that our Nation was founded on a fundamental belief in God.'"  

Justice O'Connor joins the Chief's opinion, but writes separately to suggest that the Pledge in schools is ok only because of a confluence of "four factors" that will virtually never again appear in combination in any other case.  This result derives directly from pages 24-29 of the amicus brief that Doug Laycock wrote:  http://goldsteinhowe.com/blog/files/newdow.laycock.pdf.

Justice Thomas concludes -- correctly, in my view, see http://www.goldsteinhowe.com/blog/files/Newdow%20Final%20Brief.pdf -- that if Lee v. Weisman was correctly decided, then public schools may not lead students in daily recitation of the words "under God."  Thomas, however, would overrule Lee.

> http://supct.law.cornell.edu:8080/supct/html/02-1624.ZS.html

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