Harold Johnson- Columnist
Johnson is an attorney with Pacific
Legal Foundation. A Sacramento-based public-interest
law firm, PLF has a long history of litigating for tax restraint,
including in support of Proposition 13 following its enactment
Doesn’t Know Best
The Pledge case goes to SCOTUS...
[Harold Johnson] 3/24/04
United States Supreme Court hears a lawsuit that features two
parents embroiled in a cross between Family Feud and Kramer
v. Kramer. It's the Pledge of Allegiance case, Elk
Grove Unified School District v. Newdow. The media coverage
is playing up the marquee controversy in the litigation: Whether
the words "under God" must be removed from the Pledge,
as the Ninth Circuit Court of Appeals ordered two years ago.
But a family-law dispute also looms large: Can a father without
legal custody sue to "protect" his daughter from
the Pledge -- when the mother is adamant that the girl should
continue reciting the familiar words in her public school?
Court asked for both questions to be briefed and it must address
the father's "standing," or legal authority to bring
the lawsuit, first. Without even getting to the issue of the
Pledge’s constitutionality, the Supreme Court can and
should put a halt to Newdow’s case right there.
is the father, a Sacramento emergency room doctor who has made
himself the nation's most famous atheist. Newdow is currently
juggling three legal actions to eject God from every corner
of the Public Square. One would get rid of Congress's chaplains.
Another takes aim at the Rev. Franklin Graham's prayer to Jesus
at President Bush's inauguration. The third targets the Pledge.
daughter was his prop for getting his anti-Pledge jihad before
a judge. Now nine, she attends school in the Elk Grove district
south of Sacramento, where teachers lead the Pledge every morning
for students who wish to take part. Four years ago, Newdow
filed a federal lawsuit objecting to this practice, both on
his daughter's behalf and in his own name as her father. In
2002, the Ninth Circuit confirmed its reputation for judicial
joyriding by siding with Newdow against the school district.
A three-judge panel ruled, 2-1, that saying the Pledge, with "under
God," in public school violates the First Amendment by
getting government into the religion business.
No one objected
more strenuously to this than Sandra Banning of Elk Grove,
the mother of Newdow’s daughter. During much of the life
of the lawsuit, Banning had sole legal custody of the girl.
According to the California Family Code, "sole legal custody" means "the
right and the responsibility to make the decisions relating
to the health, education, and welfare of a child." Even
now, when Newdow and Banning share custody, Banning is the
final decision-maker about the girl's schooling and welfare.
always believed -- and has taught her child -- that the Pledge
[with "under God" intact] embodies an important expression
of American ideals," according to a brief that she has
submitted to the Supreme Court. Authored by former Solicitor
General Kenneth Starr, among others, the brief calls the Pledge "an
integral part of the fabric of our society" and "part
of the American tradition of inclusiveness -- one that reflects
the democratic beliefs of a diverse society."
As for Newdow's
crusade, Banning is "profoundly concerned" that his
lawsuit would "force all public schools to banish any
statement that might be construed as a reference to religious
values, no matter how benign, latitudinarian, or important
that expression may be to the inculcation of civic virtue." The
Banning brief urges that Newdow "not be permitted to use
[their daughter] as a surrogate for his own private agenda
of imposing certain beliefs on the Nation's schoolchildren."
did not have ultimate say in his daughter's education, how
did the appellate court rationalize letting his lawsuit go
forward? Through a selective reading of precedent that rivals
the Ninth Circuit's censorship of the Pledge in its audacity.
Can a noncustodial parent sue to calibrate how much religion
his child may be exposed to, at school or anywhere else? The
answer lies with state-level family and custody law. But instead
of applying California case law in a straightforward way, the
Ninth Circuit did a cut and paste job to get the desired result.
leaned heavily on a 1980 California Court of Appeals ruling, Murga
v. Peterson, which held that a noncustodial parent may
be involved in the child's religious activities; they conveniently
passed over Murga's statement that "the custodial
parent undoubtedly has the right to make ultimate decisions concerning
the child's religious upbringing." (Italics added.)
to this twisting of precedent, former California Supreme Court
Justice Joseph Grodin has called on the Supreme Court to kick Newdow back
to the Ninth Circuit. He wants the appellate court to be ordered
to ask the California Supreme Court for a ruling on Newdow's
standing to sue -- something the Ninth Circuit should have
done to begin with, out of deference to the state judiciary
on matters of state law.
Circuit’s attempt to find standing for Newdow -- a noncustodial
parent at the time he was trying to use his status as a father
to advance his atheism -- carries broad and disturbing implications.
Drafting and interpreting family law policy has traditionally
been a domain for the states. By imposing its own arbitrary
imprint on California law relating to child custody, making
itself the Oracle of a parent's rights, the court points in
an ominous direction -- towards "federalizing" family
law, arrogating yet more power to unelected federal judges.
If the Supreme
Court recognizes the danger in taking sensitive questions of
domestic relations away from state legislators and state jurists,
it will give the California precedents a less "creative" reading
than the Ninth Circuit insisted upon -- and toss out the Newdow case
for want of standing. Alternatively, it could follow Justice
Grodin's suggestion and ask California's high court for an
opinion on Dr. Newdow's right to sue. Either of these options
might be portrayed as "avoiding" issues of church
and state, but in fact they're the only paths open if the Court
wants to affirm allegiance to principles of federalism and
local control. CRO
commentary appeared in American
2004 Pacific Legal Foundation