Professor Jack Balkin, Knight Professor of Constitutional Law and the First Amendment at Yale University, posts this interesting overview and analysis on the issues involved in the U.S. Supreme Court case — Elk Grove Unified School District v. Newdow — in which Dr. Newdow, an atheist, argues that government officials’ use of the phrase “under God” in the Pledge of Allegiance violates the Establishment Clause of the United States Constitution. Professor Balkin predicts that the Supreme Court will figure out a way to leave the words in the Pledge for primarily political reasons. Although Professor Balkin is much more knowledgeable on these issues than me, I still am not sure about that. With Justice Scalia’s recusal, I think there is a real chance of a 4-4 deadlock on the Court, which would leave in place the Ninth Circuit opinion that government officials’ use of the phrase in the Pledge violates the Establishment Clause.
On a related note, this transcript is now available of a very interesting and informative disucssion that the Pew Forum hosted last week on the Newdow case, featuring Doug Laycock and Jay Sekulow.