Tomorrow (in some parts of the world, today), is the hundredth anniversary of Bloomsday. Should they be listening, a very happy centennial to Mr. Leo. Bloom, and Mr. Steph. Dedalus.

"once like a spark"
e.e. cummings

if strangers meet
life begins -
not poor not rich
(only aware)
kind neither
nor cruel
(only complete)
i not not you
not possible;
only truthful
-truthfully, once
if strangers (who
deep our most are
selves) touch:
forever
(and so to dark)

A favor:

If you run or read a sports blog, please let me know about it sometime tonight or tomorrow via email. Thanks.

It's a part of the blogosphere that I've never penetrated until now.

Greg's post below says far more interesting stuff about Newdow than I have to say. From skimming the opinions my own tentative sense is that Justice Thomas's is one of the most interesting opinions on the merits, arguing that public-school recitation of the pledge is probably unconstitutional under Lee v. Weisman, but that Lee v. Weisman is quite questionable as an originalist matter.

This is not far from the view I incoherently expressed a while back.

I haven't anything to say on the substance of Newdow right now, but I do want to write to clear up some common misunderstandings surrounding the case. The first concerns yesterday's opinion. PG at De Novo, for example, suggests that the Court "unanimously (Scalia not participating) declar[ed] that Michael Newdow, due to insufficient custody of his daughter, did not have legal standing to sue on her behalf." The opinion of the Court with respect to the standing issue was not unanimous. On standing, the Court was divided 5-3. The first portion of Chief Justice Rehnquist's opinion (joined by O'Connor and Thomas) explains the dissenting view. To be sure, PG was not the only person to suggest that the opinion was unanimous. The problem, I think, was in the way press reports relayed the opinion. Because each member of the Court would have either vacated or overturned the lower court decision, some news reporters spoke in terms of unanimity thus, perhaps, leading to this misunderstanding.

The second misunderstanding is, I think, a bit more troubling. It seems to be some people's view that this case was about the constitutionality of the federal law inserting "under God" into the Pledge. PG, for example, writes that "The Supreme Court managed to swerve around deciding the constitutionality of 'under God' in the Pledge of Allegiance...." Tim Sandefur responds to Thomas's suggestion that the Establishment Clause "resists incorporation" by writing that "Its applicability to [Newdow] is...questionable, however, since the challenged law is a federal law" (emphasis in the original).

These are simply mistaken readings of what Newdow was about. The Ninth Circuit originally addressed the question of whether the federal law inserting "under God" into the Pledge was constitutional, but that opinion has since been wiped from the books. Unfortunately, the media frenzy that arose after the original opinion never bothered to catch up to the realities of the case that made its way to the Supreme Court. The Court granted cert. on two questions. The first concerned standing. The second asked "Whether a public school district policy that requires teachers to lead willing students in reciting the Pledge of Allegiance, which includes the words 'under God, violates the Establishment Clause of the First Amendment, as applicable through the Fourteenth Amendment." It was the school district's policy (which was put in place to satisfy a state law) that was at issue, not the more fundamental question of whether the insertion of "under God" into the Pledge via federal law was constitutional. As Justice Stevens put the matter at the start of the majority opinion, "Because the Pledge contains the words 'under God,' [Newdow] views the School District's policy as a religious indoctrination of his child that violates the First Amendment."

To be fair, the questions of the constitutionality of the school district's policy and the federal law inserting the words "under God" into the pledge at times appear to be mixed. For example, the Chief Justice appears to address the constitutionality of the words "under God" when he writes, for example, that "The phrase 'under God' in the Pledge seems, as a historical matter, to sum up the attitude of the Nation's leaders, and to manifest itself in many of our public observances." Nonetheless, he is clear that the issue is the school district's policy. The difference is subtle but important. The Ninth Circuit opinion giving rise to the Supreme Court case held that the school district policy mandating recitation of the Pledge unconstitutionally coerced a religious act. As discussed further by Thomas, then, one of the main issues was whether the school district's policy was constitutionally permissible given Lee's coercion test. Because the issue would most likely have centered on coercion and because the insertion of the words "under God" into the Pledge via federal law does not result in any coercion, it is doubtful that five justices would have pressed on past the question presented to decide the constitutionality of the federal law—a question that was not before the Court in Newdow.

Whatever else the Court did or did not do, it cannot, as PG suggests, be said to have "swerve[d] around deciding the constitutionality of 'under God' in the Pledge of Allegiance." It is also not true, as Tim Sandefur suggests, that "the challenged law [was] a federal law." To be sure, these misunderstandings are widespread. The media's coverage has generally been poor and the rhetoric that has surrounded this case has only added to the confusion. Nonetheless, I think it is important to be precise about what this case was and was not about lest the commentary take on a nature similar to that which has badly colored the case to this point.

Just for the record:

None of the views expressed on this blog by me, or my Crescat co-bloggers, or any Crescat guest-bloggers, represent the views of The New Republic or anybody else rather than each of us individually.

That should really go without saying, but there you go.

Posting on my part will be light until various internet affairs are sorted out. But for now, a few thoughts from Miss Manners (7/31/83):

Q: I was puzzled what to do about the porch light on the departure of some guests Sunday, and wonder how you would have handled this situation.

My guests included a young woman whom I have known since she was a young child and for whom I have much affection. The occasion, in part, was to effect my first introduction to a young man with whom she is evidently in love, as he is with her.

We had a very pleasant evening, and I approved of and liked the young man. I was touched that, from time to time, he reached over and squeezed my young friend's hand as an expression of affection, and grateful that evidences of their mutual affection were contained within proper bounds on this occasion.

The two young people came and left in separate cars, as he lives in town and she in the country, not far from my house, with her father. They were the last to leave, and of course I turned on the porch light. As I cleared glasses and emptied ashtrays afterward, I became aware that I had not heard their cars start up and realized they were having some long good night kisses in my driveway, which was rather well lighted by the porch light.

I felt that turning out the light, while it would give them more privacy, might appear unfriendly or even disapproving, which I was not. Would it have been more or less polite to turn out the light?

A: Miss Manners is hardly the one ever to say, "What does it matter?" but she does have the feeling that your young friends would probably have remained cheerfully oblivious to your electrical activities, whatever they were.

By your account, they behaved well in your house and officially departed. They are then out of your jurisdiction, and you can take no official notice of them. That is to say that any peeping must be done from a darkened room, and you are not allowed to tease them later about what you saw.

Miss Manners' instinct would be to leave the light on, presumably as usual, to disguise the fact that you did not go to bed before this late show began. If, however, you believe that the lack of privacy--which does not seem to have bothered them--will attract an audience of neighbors, you might turn the light off. They are not likely to know whether this is your habit when guests have gone and you have finished cleaning up, and Miss Manners is of the opinion that they are not likely to transfer their emotions of the moment to worrying about that.