Today’s Sunday School lesson: Sen. Thune Meet the Ninth Commandment

One would assume that John Thune, our evangelical Christian U.S. Senator, knows the 9th Commandment says, “You shall not bear false witness against your neighbor.” Some of us infidels take that to mean you shouldn’t tell untruths about others. I guess we weren’t taught about the footnote saying it doesn’t apply in the context of hot button political issues.

Thune issued a press release Thursday, the day after U.S. District Judge Lawrence Karlton issued the latest ruling (PDF file) in the California case involving the constitutionality of the phrase “under God” in the Pledge of Allegiance. It quoted our Bible-following Senator saying:

This is yet another example of an irresponsible decision by a liberal activist judge unable to separate personal politics from public service.

One would certainly hope the Senator (or his staff) read the opinion before saying such things about Judge Karlton. Alas, they must not have as the opinion contradicts the statement.

Put simply, Judge Karlton ruled that “my duty as a judge of a subordinate court” meant his ruling was controlled by the “binding precedent” established by earlier decisions of the U.S. 9th Circuit Court of Appeals in the very case. Of course, there’s no reason for our Senator (or his staff) to know that — after all, none of this language appears until the second sentence of the decision.

Preferring rhetoric over an honest presentation of the facts, here (taken largely from the US Supreme Court opinion in the case) is the truth you didn’t hear from Thune. In 2002, the 9th Circuit ruled that a California law and school district policy requiring students to recite the pledge with the phrase “under God” violated the Establishment Clause of the First Amendment. The Court later issued an opinion as to whether the plaintiff had “standing,” the legal right to bring the lawsuit. Then, in 2003 the Ninth Circuit issued an amended order that reiterated the holding on the unconstitutionality of the law and policy and led to the Supreme Court appeal. The two issues presented the Supreme Court were whether the plaintiff had standing and whether the 9th Circuit correctly ruled on the constitutional issue involving the “under God” phrase. The Supreme Court addressed only the first, saying the plaintiff did not have standing, and DID NOT EXAMINE the merits of the 9th Circuit’s ruling on the constitutional issue.

The case is sent back and ends up in Judge Karlton’s lap — for the very first time as far as I can tell. The plaintiff attempted to fix the standing problems the Supreme Court found and new plaintiffs joined in. After deciding standing existed, Judge Karlton was presented with the identical constitutional issue the 9th Circuit had answered in its prior opinions. Judge Karlton said he was “bound” by the prior decisions and issued his ruling on that constitutional issue on that basis and that basis alone.

I believe Judge Karlton is right. With the 9th Circuit having spoken on the identical constitutional issue presented him, that earlier decision is the law of the case — at least in that circuit — and binding upon Judge Karlton, regardless of how he might have ruled were it not for those prior decisions. Lawyers can make all sorts of scholarly arguments whether reversal on the standing issue means the 9th Circuit’s constitutional analysis and holding could be ignored just as we can argue about how many angels or demons can dance on the head of a pin. The fact remains the 9th Circuit’s expressly ruled on the very constitutional issue presented in this very case and the majority opinion of the Supreme Court did not address or pass upon it.

The “public service” Thune demands from Judge Karlton was exactly what the public received. The judge adhered to the longstanding principle that a federal court of appeals is superior to a district court in that circuit and that a district court judge is required to follow the law of the case as established by that superior court. The judge’s “personal politics” have nothing to do with that being the rule of law. In fact, Sen. Thune failed to mention that in another part of the decision Judge Karlton ruled that the plaintiffs, as adults and not in their role of representatives of their children, have no right to sue over the fact that the pledge is recited at school board meetings they attend. But why let the truth stand in the way of a good political soundbite?

Sen. Thune and others of the religious right who have taken this same stance on Judge Karlton’s ruling should be ashamed of their deception and duplicity.

Pending before the court are motions to dismiss in what is something of a cause celebre in the ongoing struggle as to the role of religion in the civil life of this nation. Below, I conclude that binding precedent requires a narrow resolution of the motions, one which will satisfy no one involved in that debate, but which accords with my duty as a judge of a subordinate court.

U.S. Senior District Judge Lawrence K. Karlton,
Newdow v. The Congress of the United States (Sept. 14, 2005)

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