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In the spring of , citizens and legal scholars were watching the Supreme Court for a decision on whether the Pledge of Allegiance, including its phrase “one nation under God,” could be recited in the nation ’s public schools. The case in which the issue arose, Elk Grove Unified School District v. Newdow, had all the stuff of great drama. A young girl was caught in the middle of an acrimonious divorce between her Atheist father and Christian mother, with each parent claiming to have the child’s “best interest” in mind. The father, “ordained . . . in a ministry that ‘espouse[d] . . . that the true and eternal bonds of righteousness and virtue stem from reason rather than mythology,’” had strong objections to the daily recitation that took place in his daughter’s kindergarten classroom. He filed suit against the Elk Grove school district, arguing that the ritual amounted to religious indoctrination in violation of the Constitution’s prohibition on religious establishment and the Free Exercise Clause of the First Amendment . Following a highly publicized decision in California’s Ninth Circuit , the girl’s mother formally intervened in the litigation, stating that she did not object to the recitation of the Pledge in her daughter’s classroom and questioning the wisdom of using the young girl to advance her ex-husband’s political agenda. The case also attracted third parties concerned about fundamental issues involving religious autonomy and love of God and country. Groups like the American Civil Liberties Union and the Christian Legal Society submitted legal briefs seeking to help lower federal courts reach the “correct ” legal conclusion. The media exacerbated the tension surrounding the dispute by showing interest groups hurling competing sound bites at each other on the nightly news. By the time the nation’s highest court announced it would take the case, emotions and expectations were high on both sides. INTRODUCTION 2 Introduction On June , , when the Court released its decision, everyone was waiting with bated breath to see how the justices would come down on the issue. That evening, with decision in hand, television pundits found themselves having to explain that in the case that had been so highly publicized, the Supreme Court said nothing about the constitutionality of reciting the Pledge in the nation’s public schools. The result was a resounding whimper rather than the anticipated roar by groups whose views would have been vindicated and/or repudiated by a decision on the merits. Legal experts collectively shrugged, while the general public was left somewhat confused by the decision. News organizations scrambled to explain that the Court did not decide the issue because of a legal “technicality .” Game over, but stay tuned: a similar case may work its way up to the Supreme Court in the next few years. What explains this outcome? Why did the Supreme Court shirk its responsibility to settle this highly volatile issue? Why were those in the legal community less surprised than the average citizen who had been paying attention to what was happening? Did the decision really have nothing at all to do with what the justices thought about reciting the Pledge in our nation’s public schools? All of these are interesting and important questions. They go to the heart of what we, as citizens, expect from our legal system, how much we know about it, and what we are willing to “take on faith,” leaving to experts specifically trained in the esoteric norms of legal discourse and decision making. Explaining Newdow: Legal Justifications and Motivational Ambiguity Simply stated, what was characterized by much of the media as a legal “technicality,” represented for the bench and bar an important but familiar issue involving the appropriate use of federal judicial power. Far from being a procedural technicality, the “standing” issue that arose in the case goes to the heart of how judges think about themselves and the requirements necessary for them to exercise legitimate authority in our democratic system. It concerns whether the person bringing a particular cause of action is the proper party to litigate the claim. In legal jargon, it involves showing an “injury in fact” that is personal to the plaintiff and not shared by the population at large. The aim is to ensure the adverseness necessary for the proper exercise of judicial authority. The fact that the issue arose in a case at the center of a national firestorm created public confusion when the Court decided that the non- [3.17.154.171] Project...

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