The dilemma for Justices O'Connor and Kennedy

From an Attorney friend:

Losing Scalia makes it slightly less likely to get an adverse decision on
the merits, by taking 5-4 off the table. 4 is now a win! It will be great
to see them twisting in the wind on this one - Kennedy has already said
that "under god" fails the endorsement test, but that's O'Connor's test
and presumably she won't want to overturn it. So is that 2 "for" votes
or not? Since that test is the law by precedent, it's another
referundum on the strength of stare decisis.

Well, I stick with my earlier analysis, which is that logical
consistency leads to the conclusion that it's 6-2 for Newdow. The four
you have, plus O'Connor as the author and proponent of the endorsement
test, and Kennedy who is on record stating that the Pledge doesn't pass
the endorsement test. Kennedy also wrote Lee v. Weisman, the graduation
prayer case
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The court said:
[5] The Pledge, as currently codified, is an impermissible government
endorsement of religion because it sends a message to unbelievers "that
they are outsiders, not full members of the political community, and an
accompanying message to adherents that they are insiders, favored members
of the political community" Lynch, 465 U.S. at 688 (O'Connor, J.,
concurring). Justice Kennedy, in his dissent in Allegheny, agreed:

[B]y statute, the Pledge of Allegiance to the Flag describes the United
States as `one nation under God.' To be sure, no one is obligated to recite
this phrase, . . . but it borders on sophistry to suggest that the
reasonable atheist would not feel less than a full member of the political
community every time his fellow Americans recited, as part of their
expression of patriotism and love for country, a phrase he believed to be
false.

Allegheny, 492 U.S. at 672 (Kennedy, J., dissenting) (citations and
internal quotation marks omitted).7 Consequently, the policy and the Act
fail the endorsement test.

[6] Similarly, the policy and the Act fail the coercion test. Just as in
Lee, the policy and the Act place students in the untenable position of
choosing between participating in an exercise with religious content or
protesting. As the Court observed with respect to the graduation prayer in
that case: "What to most believers may seem nothing more than a reasonable
request that the nonbeliever respect their religious

7 For Justice Kennedy, this result was a reason to reject the endorsement
test.

SOURCE: Newdow v. U.S. Congress, 9th Circuit, June 26, 2002, p 9124
other wise known as Newdow I.
To read the full text of this opinion, go to:[PDF File]
http://caselaw.lp.findlaw.com/data2/circs/9th/0016423p.pdf
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Latest Developments in the Pledge Case
As of March 28, 2004
And Some of Our Thoughts and Comments
http://members.tripod.com/~candst/pledge2.htm