Saturday, March 05, 2005

Eric Clay

Kay Daly examines Judge Eric Clay's jurisprudential faults in this essay. Clay is a Clinton appointee to the Sixth Circuit.

I'd add something that Daly didn't mention. When I clerked for Judge David Nelson on the Sixth Circuit, there was a huge en banc case involving the constitutionality of the Ohio motto: "With God All Things Are Possible." Judge Nelson wrote a very witty and wry opinion upholding the motto. (See particularly section II.D of the majority opinion, section III, footnote 9, footnote 13, footnote 14, and footnote 18 and the accompanying text.)

Judge Clay concurred for one reason alone:
CLAY, Circuit Judge, concurring. I find much to recommend in the reasoning of both the majority opinion and the dissenting opinion even though the two opinions purport, in many ways, to be unalterably opposed to one another. * * *

I concur in the majority opinion, not because I necessarily embrace all of its reasoning, but because the Supreme Court has, by implication, approved for public enshrinement the national motto of "In God We Trust" by denying certiorari with respect to two of the three cases of our sister circuits challenging the motto where certiorari was sought and where the constitutionality of the national motto was upheld against challenges based on the Establishment Clause. See Gaylor v. United States, 74 F.3d 214 (10th Cir.), cert. denied, 517 U.S. 1211 (1996); O'Hair v. Murray, 588 F.2d 1144 (5th Cir.), cert. denied, 442 U.S. 930 (1979); Aronow v. United States, 432 F.2d 242 (9th Cir. 1970). Because I do not find the import of the Ohio motto at issue in this case, when considered in context and with reference to both its literal and symbolic meanings, to be significantly distinguishable from the national motto, I do not believe this Court could logically disapprove of the Ohio motto on establishment of religion grounds so long as the national motto passes constitutional muster. And again, the Supreme Court, by failing to disapprove the national motto, has clearly signaled, at least by implication, that the national motto is not at odds with constitutional principles.
As I explained here, a Supreme Court denial of certiorari in no way implies that the Supreme Court approves of the lower court's opinion. This principle is as well-established as anything can be about the law.

Stuart Buck

1 Comments:

Anonymous John Schedler said...

At the very least, Judge Clay could use a decent editor. His cannot escape the density of his prose.

8:21 PM  

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