Any guess on the result if the Supreme Court didn't punt based on standing? If they're inclined to strike down "under God", doing so now could only hurt Kerry. A 4-4 tie would have resulted in the earlier decision standing...
That was my thought when I first heard it.
Next time, Scalia won't recuse himself, so this is a warning to the ACLU...
Punting based on standing is not in my view a good omen. If five votes were there to just do it, it would have been done. The Chief Justice is the real stickler on standing (along with Seuter, but well Seuter is Seuter), and he found standing. I suspect that either Kennedy or O'Connor (my guess is O'Connor; Kennedy is less secular than O'Connor, although these days the premier loose cannon on the court), just didn't want to face having to truncate the pledge, if there was a way to avoid it. So my guess, is 5-4 against using that word in the pledge. But it is all highly speculative, and I am just an obscure lawyer that is never paid to litigate Constitutional issues. I have to make my living in more prosaic ways.
"-- In its current form, reciting the Pledge entails pledging allegiance to "the Flag of the United States of America, and to the Republic for which it stands, one Nation under God.".
--- pledging allegiance is "to declare a belief " that now includes that this is "one Nation under God."
It is difficult to see how this does not entail an affirmation that God exists.
Whether or not we classify affirming the existence of God as a "formal religious exercise" akin to prayer, it must present the same or similar constitutional problems.
To be sure, such an affirmation is not a prayer, and I admit that this might be a significant distinction. But the Court has squarely held that the government cannot require a person to "declare his belief in God."
("We repeat and again reaffirm that neither a State nor the Federal Government can constitutionally force a person 'to profess a belief or disbelief in any religion' (rejecting attempt to distinguish worship from other forms of religious speech).
And the Court has said, in my view questionably, that the Establishment Clause "prohibits government from appearing to take a position on questions of religious belief."
I conclude that, as a matter of our precedent, the Pledge policy is unconstitutional.
Any guess on the result if the Supreme Court didn't punt based on standing?
Logic has it that the Thomas view would prevail:
"-- the government cannot require a person to "declare his belief in God."
" -- We repeat and again reaffirm that neither a State nor the Federal Government can constitutionally force a person 'to profess a belief or disbelief in any religion' -- "