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McCain’s Judicial Philosophy and the Pledge of Allegiance in Schools

By Mark Walsh — May 06, 2008 1 min read

Sen. John McCain of Arizona, the presumptive Republican presidential nominee, gave a speech today at Wake Forest University designed to outline his judicial views in which he cited a famous legal challenge to the recitation of the Pledge of Allegiance in schools.

The campaign put out this press release, as well as the text of his remarks. He says that if given the opportunity, he will appoint U.S. Supreme Court justices in the mold of Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr.

McCain cited cases in which he thinks courts have run amok by imposing the judges’ personal philosophies, or have failed to properly apply the U.S. Constitution. The only school case in that litany involved the challenge a few years ago to the words “under God” in the Pledge of Allegiance pressed by California atheist Michael Newdow. (Although McCain didn’t cite him by name:)

Then there was the case of the man in California who filed a suit against the entire United States Congress, which I guess made me a defendant too. This man insisted that the words "Under God" in the Pledge of Allegiance violated his rights under the establishment clause of the First Amendment. The Ninth Circuit court agreed, as it usually does when litigious people seek to rid our country of any trace of religious devotion. With an air of finality, the court declared that any further references to the Almighty in our Pledge were -- and I quote -- "impermissible." And it was so ordered -- generations of pious, unoffending custom supposedly overturned by one decree out of a courtroom in San Francisco. And now it turns out the same litigant is back for more in the Ninth Circuit, this time demanding that the words "In God We Trust" be forever removed from our currency. I have a feeling this fellow will get wind of my remarks today -- and we're all in for trouble when he hears that we met in a chapel.

At least according to the prepared text, McCain didn’t mention that the Supreme Court threw out the ruling by the U.S. Court of Appeals for the 9th Circuit against the inclusion of “under God” in the Pledge. The high court, in Elk Grove Unified School District v. Newdow, held that Newdow lacked standing to bring the challenge on behalf of his daughter. Education Week reported on that decision here.

Newdow is pressing a new suit against “under God” in the Pledge, which Edweek reported on here.

(This is being cross-posted at Education Week’s School Law Blog.)

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