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June 14, 2004

Caveat: IANAL

Is it just me, or are is the Supreme Court a bunch of pussies?

The court said atheist Michael Newdow could not sue to ban the pledge from his daughter's school and others because he did not have legal authority to speak for her.

Rule one way or the other, dammit, so the country can put this issue behind us. What's the point of having a supreme authority in the land if that authority is constantly ducking the questions posed to it?

Not to mention that the way the decision was issued spell trouble for parents. Newdow has custody of his daughter for 120 days out of the year, yet according to the court he doesn't have the legal authority to speak for her. Is 150 days of custody a year enough, to give a man the right to bring legal action on behalf of his biological offspring? If not, what is? 200? 300? Or does it have to be the full 365?

One thing we know for sure. 120 days of custody aren't enough, thanks to the pusillanimous Supremes. Divorced parents out there with weekend custody are now one lawyer's motion away from legal ciphers in the lives of their children.

A ruling either way on the issue of "under god" in the pledge would have been better for the country than the can of worms the Supreme Court has opened on parental legal standing.

Update: Slate's Dahlia Lithwick argues that the decision was a good one.

Posted by Bigwig at June 14, 2004 02:55 PM | TrackBack
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I'm sure this will only mean another plaintiff with stronger standing brings a similar case to court. We know the Ninth will smile favorably on such an action, so that will place the issue back on the supreme's docket. They only delayed the issue temporarily.

It could be argued that in the present political climate there are more important fish to fry, so perhaps the court actually did us a favor by delaying a ruling which will be controversial and divisive no matter which way they rule.

Posted by: Ole Eichhorn at June 14, 2004 04:57 PM

Rules are rules, and it's the supreme court's job to see that they're followed. A brief read of the Courts Opinion demonstrates a deeper issue of standing here.

To wit, Newdow's ex-wife didn't want her daughter to have any part in the trial. She filed a motion to that extent. Newdow claimed the pledge kept him from espousing his beliefs to his daughter. The Court found that it did not keep him from doing that, and that he was really asking for a "more ambitious relief of forestalling his daughter's exposure to religious ideas endorsed by her mother."

In short, the court decided that Newdow has no standing to "reach outside the private parent-child sphere" to influence what is said to his daughter.

Good opinion, IMHO. Not to the issue that many wanted to see decided, but correct nonetheless. It should also be noted that Rehnquist, O'Connor, and Thomas wrote a concurring opinion that actually (I believe) spoke to the issue.

(Sorry for the long comment)

Posted by: Pete at June 14, 2004 06:17 PM

A holding based on standing isn't really a technicality, as it was described on MSNBC and in other outlets.

Standing - having a live issue, where you are the party with an interest at stake - is a big prerequisite to bringing a court case. Otherwise, anybody could sue anybody else at any time, for any reason. I could sue you to prevent you from from fishing, drinking and stinking. The fact that your ichthyian, bibulous malodorousness has nothing to do with me, would not pose a barrier to me tying you up in expensive litigation.

There are some exceptions to the standing requirement. Where a case becomes moot - for example an abortion case where the baby is delivered before a final decision is rendered - the court can consider the controversy "live" because it is capable and indeed likely to be repeated again. In the interest of justice, courts should probably rule in close cases in favor of the plaintiffs who are seeking access to the court. In this particular case, Mr. Newdow had no parental rights at stake, was in fact litigating a case contrary to the wishes of the parent with rights to control the child (the mother); and was litigating contrary to the child's wishes. The rules is the rules.

On top of that, if the Court was to follow its own utterly incoherent First Amendment jurisprudence, it would be forced to strike down the pledge, the motto on the money, the verbiage of the Marshall at the Supreme Court (God save this honorable Court) as well as tax exempt status for churches, military chaplains, and John Kerry's senatorial blaspheming whenever he manages to fall over a Secret Service agent.

The real holding they need to issue to straighten out the establishment clause is "get the fuck over it." It's unlikely that such a decision will issue any time in the near future; expect the Court to continue to try to stamp out any publicly influenced or visible exercise of religion, in the interest of not offending atheists. Today wasn't the day for that, however - the last thing the liberals on the Court want is a huge controversy that puts another Scalia on the bench.

Posted by: Blackavar at June 14, 2004 08:27 PM

Go read the opinion. Under their joint custody agreement, the parents agreed to consult about the raising of their child. However, if they can't agree on an issue, the mother has the final say. That's why Newdow doesn't have standing to sue on behalf of his daughter. Under California law and his custody agreement, he has part-time physical custody, not legal custody. That's a huge difference under the law.

The Court didn't open a can of worms at all. They followed long-standing legal precedent of leaving domestic relations issues to the state. As they should have. Otherwise, they would've in fact expanded the jurisdiction of federal courts, which I think you'd agree isn't a good thing.

I'd like to see them definitively rule on this issue's just this wasn't the case in which to do it.

Posted by: rita at June 15, 2004 08:14 AM
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