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Would Roy Moore head the Church of Alabama?

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About the merits of Elk Grove v. Nedow, I would say briefly that 1)the standing analysis that allowed the Court to duck the issue isn’t very convincing, but was probably politically prudent, 2)Thomas is clearly correct that the addition of “Under God” to the pledge is unconstitutional under Lee v. Weisman, and 3)O’Connor’s concurrence is a good example of Leon Wiesleltier’s point that the inclusion of “Under God” trivializes religion.

I do, however, wish to bring attention to this remarkable passage from Thomas’s concurrence:

I would acknowledge that the Establishment Clause is a federalism provision, which, for this reason, resists incorporation. Moreover, as I will explain, the Pledge policy is not implicated by any sensible incorporation of the Establishment Clause, which would probably cover little more than the Free Exercise Clause.

According to Thomas, then, not only should the Establishment clause be read so narrowly as to render it meaningless, but it should not apply against the states at all. States would be free to create churches, pay for them with tax dollars, and discriminate in any number of ways against those who are not members.

Again, I would like to note the Clarence Thomas is George Bush’s ideal justice.

UPDATE: Interesting discussion by Georgetown law professor Mark Tushnet here. He argues that the standing ruling is so narrow it won’t affect any major cases; hopefully this is correct.

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