Recently in Establishment Clause Category

The run-up to debate in the Senate on health care and abortion is already producing some interesting comments.  The Senate bill offered by Senate Majority Leader Reid does not include any pro-life language like that of the Stupak-Pitts Amendment which was approved by the House.  In fact, the Reid bill mandates federally subsidized abortion and actually requires a monthly abortion fee.

Sen. Orrin Hatch (R-Utah) says he will offer a pro-life amendment to the Senate bill with language very similar to the House-passed Stupak-Pitts Amendment.  And, Rep. Bart Stupak (D-Mich), who's led the charge to remove abortion funding from health care, says he has the votes necessary to block passage if the Senate version does not include pro-life language.

The full court press is on to discredit the pro-life language in the House-passed bill.  Some in the legal community are questioning the constitutionality of the Stupak-Pitts Amendment, and one of our senior attorneys has produced a sound rebuttal to those flawed arguments.

Barry, I believe the Supreme Court ultimately will conclude that the plaintiff did not have legal standing here - that this challenge was legally flawed from the very start. 

Merely being 'offended' does not give the plaintiff a legal green light to go to court to challenge this memorial. As you know, just because the 'standing' issue did not receive a lot of attention during oral argument does not mean the Justices are ignoring it.  They won't and in the end I believe our side will carry the day on this issue.

Second issue: the Establishment Clause question.  Does the placement of a cross on what was once public land - but now private land - constitute a violation of the Establishment Clause?  I believe the answer is 'no' and I am hopeful that's what a majority of the court will determine. 

Barry, it was good to see you today.  I always enjoy an opportunity to sit next to you during oral arguments at the Supreme Court - especially with a case like the one we witnessed today. 

As we both know, this case is closely watched and involves the display of an 8-foot cross on a mountain top in California's Mojave Desert - a memorial honoring war veterans.  The case is Salazar, Secretary of the Interior, et al., v. Buono. (08-472)

Like most of these cases, the Justices were divided on this issue.  And, Justice Kennedy, who is often the deciding vote in these church/state cases, said little to reveal how he will vote on this case.

Ok, Barry - looks like we won't agree on the Ten Commandments and what we consider to be the proper and constitutional displays present in Judge DeWeese's courtroom.

Let's try this one. 

A federal district court in New Hampshire has issued a decision upholding the voluntary recitation of the Pledge of Allegiance by students in school and has dismissed a lawsuit filed by the Freedom From Religion Foundation.

The suit was filed in 2007 against two New Hampshire public school districts and Congress on behalf of several parents and students who objected to the voluntary recitation of the Pledge of Allegiance in school.  Specifically, the lawsuit challenged the addition of the words "under God" in 1954 in the Pledge and the practice of reciting the Pledge in public schools as a patriotic exercise.

Barry, I want to offer my congratulations to you and your family.  I'm sure your son's wedding was, indeed, a great celebration.

I want to take a moment to discuss a topic you and I have debated from time to time - the constitutional role of displaying the Ten Commandments.   As you know, ABC News is focusing on the Ten Commandments - an issue that always seems to be in the legal spotlight thanks to you and your colleagues.  Case in point:  Ohio - where we represent Judge James DeWeese of Richland County, Ohio who has been sued repeatedly by the ACLU - this time for a poster he placed in his courtroom called "Philosophies of Law in Conflict."

The poster is divided into two sections.  The first is titled "Moral Absolutes," the second "Moral Relatives."  To illustrate the meaning of these two clashing moral concepts, Judge DeWeese quotes texts which support each one: for moral absolutes, the Ten Commandments; for moral relativism, the Humanist Manifestos and other sources.