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Perry & the Passive Virtues: A Postscript

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  1. Howard Wasserman says:

    But did Newdow present a truly unique situation in that neither “side” on the issue could write the opinion they wanted to. The Establishment claim cannot be rejected consistent with existing precedent, while the political fallout of striking down “Under God” would be too great. I am not sure that is true for SSM–standards of scrutiny can be used to reject the claim and the political fallout from accepting the claim (given the current direction of public opinion), while initially negative, would be far less and far more manageable.