Wednesday, June 16, 2004

Newdow v. Supreme Court

The big story in the news lately is the Supreme Court case Elk Grove Schools v. Michael Newdow. This is the case in which a divorced father (with custody standing seemingly in tandem between joint and none) sued his daughter's school over the constitutionality of the words "under God" in the Pledge of Allegiance.

The court refused to decide the case due to the father's lack of standing to sue on behalf of his daughter considering the flux in his custody arrangement. A good article is available from Newsday.com and I will reprint some of that article verbatim: (The entire article is still worth a read)

"The decision that a father lacks sufficient standing to bring such a case should be a matter of great public concern. Indeed, three justices disagreed and felt that Newdow had standing (as a lower court found) based on his status as a parent. Ironically, if he had some small financial interest in the pledge, he would have had standing. Yet, with a daughter in the school system, he lacks standing simply to ask for review of an allegedly unconstitutional policy. The decision is only the latest example of how the court pays lip service to the constitutional rights of parenting, but routinely ignores that basic right in the slightest conflicts, including a simple test of standing.

Notably, the court appears wrong even in its reading of California law. California courts have emphasized the right of both parents to bring actions to protect their rights. Indeed, the California courts are marching in the opposite direction from the Supreme Court. Recently, in an important ruling, the California Supreme Court ruled that custodial parents could not claim the absolute right to dictate changes in the lives of their children by moving out of state - and away from a non-custodial parent. The court found that the non-custodial parent has a voice in such a move and is not trumped by the mere fact that custody resides with the other parent."


In the most basic of terms, this decision struck a blow to parents across the country who do not have completely equal custody of their children. It basically says that without equal custody a parent's right to the upbringing of their child can be terminated at the discretion of the "primary" parent. In this case, the mother claimed to not have a problem with the words "under God."

I cannot imagine the Supreme Court did not consider the ramifications this would have on family courts across the country, all while doing nothing about the constitutionality of recitation of the Pledge of Allegiance. Surely this case will come before them again and they will not have the luxury of ducking out by some type of family law loophole. However, the ramifications for children of divorce will be long reaching.

The full case can be viewed here (This is an Adobe file so you will need Adobe Reader): FindLaw

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