A friendly reminder. Call your mom.
I can’t sing. But my puppy can.
Michael Newdow filed suit against Chief Justice Roberts, arguing that adding “So Help Me God” to the end of the Inaugural Oath violated the establishment clause. The case was heard before a DC Circuit panel consisting of Judges Ginsburg, Brown, and Kavanaugh. The opinion is here.
Judge Brown found that Newdow lacked standing. However, Judge Kavanaugh found that the Plaintiff lacked standing, but adding “So Help Me God” to the end of the oath did not violate the Establishment Clause. Here are some interesting parts of his opinion, which begins on page 19 of the pdf.
First is an obvious point, but one worth emphasizing. In our constitutional tradition, all citizens are equally American, no matter what God they worship or if they worship no god at all. Plaintiffs are atheists. As atheists, they have no lesser rights or status as Americans or under the United States Constitution than Protestants, Jews, Mormons, Muslims, Hindus, Buddhists, Catholics, or members of any religious group.
Second, in deciding this case, we cannot gloss over or wish away the religious significance of the challenged Inaugural prayers. The fact that religious words are common to many faiths – or are used repeatedly – does not diminish their religious meaning. Neither the numbing effect of repetition nor the brevity of a prayer extinguishes the religious nature of words such as “help me God.”
Third, and relatedly, we cannot resolve this case by discounting the sense of anguish and outrage plaintiffs and some other Americans feel at listening to a governmentsponsored religious prayer. Any effort to tell plaintiffs that “it’s not a big deal” or “it’s de minimis” would be entirely out of bounds, in my judgment. Plaintiffs’ beliefs and sincere objections warrant our respect.
And we get a nice citation to Salazar v. Buono
Fourth, at the same time, we likewise cannot dismiss the desire of others in America to publicly ask for God’s blessing on certain government activities and to publicly seek God’s guidance for certain government officials. Plaintiffs suggest that no one should be upset if government ceremonies were entirely cleansed of religious expression; they argue that such a regime would reflect true government “neutrality” toward religion. Others respond, however, that stripping government ceremonies of any references to God or religious expression would reflect unwarranted hostility to religion and would, in
effect, “establish” atheism. Cf. Salazar v. Buono, No. 08-472, slip op. at 14-15 (U.S. Apr. 28, 2010) (opinion of Kennedy, J.) (“The goal of avoiding governmental endorsement does not require eradication of all religious symbols in the public realm. . . . The Constitution does not oblige government to
avoid any public acknowledgment of religion’s role in society.”); Lee v. Weisman, 505 U.S. 577, 598 (1992) (“A relentless and all-pervasive attempt to exclude religion from every aspect of public life could itself become inconsistent with the Constitution.”).
Kavanaugh compares the addition to the oath to the legislative prayer upheld in Marsh.
Like the legislative prayer in Marsh, the words “so help me God” in the Presidential oath are not proselytizing or otherwise exploitative. Moreover, like the practice of legislative prayer, use of “so help me God” in oaths for government officials is deeply rooted in the Nation’s history and tradition. By many accounts, George Washington said “so help me God” when he took the first Presidential oath in New York on April 30, 1789. The First Congress – the same Congress that drafted and approved the First Amendment – mandated “so help me God” in the oaths of office for federal judges.…Under Marsh and other Supreme Court precedents, the Establishment Clause permits “so help me God” in the official Presidential oath.
The traditional prayer before this Court’s sessions (and before the Supreme Court’s sessions) is analogous to “so help me God” in the Presidential oath and to the legislative prayers upheld in Marsh. As with the legislative prayers in Marsh, the use of “God save the United States and this honorable Court” before court sessions does not proselytize or otherwise exploit the prayer opportunity so as to advance any one, or to disparage any other, faith or belief. And this prayer is deeply rooted in American history and tradition. See McCreary County v. ACLU, 545 U.S. 844, 886 (2005) (Scalia, J., dissenting) (prayer used under John Marshall); Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 29 (2003) (Rehnquist, C.J., concurring in judgment) (prayer used in Supreme Court at least since 1827). Therefore, under the Marsh test, the prayer “God save the United States and this honorable Court” before court sessions is constitutionally permissible. Indeed, Marsh itself specifically referenced “God save the United States and this honorable Court” as a quintessential example of a permissible religious reference.
Interesting story from our neighbors from the North:
The Supreme Court of Canada slammed the door shut today on a concerted attempt by the press to establish a blanket right to protect confidential sources.
In an 8-1 ruling, the court said that in an age of blogging, Twittering and long-range microphones, the media are too amorphous to enjoy such a right and too ungovernable to exercise it properly.
“The bottom line is that no journalist can give a source a total assurance of confidentially,” the majority said.” All such arrangements necessarily carry an element of risk that the source’s identity will eventually be revealed.”
Mr. Justice Ian Binnie said it was a “simplistic proposition” to suggest that a journalist should be able to decide on his or her own whether to grant blanket immunity to a source.
To grant a right to administer blanket immunity to a trade that has no professional regulation and vastly differing ethical standards, “would blow a giant hole in law enforcement and other constitutionally recognized values such as privacy,” the majority said.
“Journalistic privilege is very context specific,” it added. “The public interest in free expression will always weigh heavily in the balance.”
I don’t know much about Canadian Freedom of the Press Law, but this strikes me as a harsh outcome.
H/T Yaakster.
Very cool story from Gizmodo. Thanks to an enterprising Penn State student, Beaver Stadium will relocate the student section to behind the Southern End Zone, and make the stadium even louder.
PSU’s not achieving the increase by adding more seats or handing out more thundersticks. In fact, they’re just going to relocate the 20,000 seats in the student section to the southern end zone.
When the stadium was empty, he searched for the best spots for an audible assault by carrying a noisy speaker around to 45 different seats and measuring how loud it sounded on the field… For seats on the sidelines, closer was better. Students sitting in the highest rows contributed very little to the overall sound. But the situation was reversed behind the end zone. Higher seats could be heard better than field-level seats because of a trick of the stadium’s architecture, said Barnard.
If you have ever been to a night game at Penn State, you will be amazed how loud it is. I can’t imagine the volume with this new configuration. I look forward to many more false starts and forced timeouts. Win.
