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Harold Johnson- Columnist

Harold 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 in 1978.

Harold Johnson represents one of the Sea Scouts challenging Berkeley's anti-Scout policy before the California Supreme Court. Mark S. Pulliam, a Pacific Legal Foundation trustee, is an attorney in San Diego with sons in the Boy Scouts.

More Than The Pledge
The 9th Circuit tried to take over state law in their attempt to abolish the Pledge...
[Harold Johnson] 6/17/04

Monday the U.S. Supreme Court put a halt to an atheist father's challenge to the Pledge of Allegiance without ever getting to his claim that the words "under God" flout the Constitution. Was the court ducking tough issues by finding that Dr. Michael Newdow, as a noncustodial parent, couldn't sue to keep the pledge out of his daughter's public school in Elk Grove?

Far from it. The court was enforcing core constitutional doctrines - such as the rule that federal judges generally shouldn't butt into local policy-making.

Local policy on child custody was key to this case. Under California law, Newdow was plainly not in a position to sue to "protect" his grade-school daughter from the pledge. During much of the life of the lawsuit, the girl's mother, Sandra Banning, had sole legal custody of the girl. "Sole legal custody" means "the right and the responsibility to make the decisions relating to the health, education and welfare of a child," according to the California Family Code. Even now, when Newdow and Banning share custody, it's Banning who has been named the final decision-maker about the girl's schooling and welfare.

And Banning's thoughts on the pledge? She "has always believed - and has taught her child - that the pledge embodies an important expression of American ideals," according to a brief she submitted to the Supreme Court. Authored by former Solicitor General Kenneth Starr, the brief hails the pledge as "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 warned the court that his lawsuit might "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 urged that Newdow "not be permitted to use [his daughter] as a surrogate for his own private agenda of imposing certain beliefs on the nation's schoolchildren."

If California law clearly doesn't let Newdow use his daughter as a prop to bring his suit, how did the Ninth U.S. Circuit Court of Appeals allow the case to go forward? By doing a cut-and-paste job on state legal precedents - in other words, another choice example of Ninth Circuit activism.

The Ninth Circuit 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. What the court conveniently passed over was Murga's statement that "the custodial parent undoubtedly has the right to make ultimate decisions concerning the child's religious upbringing."

In response to this contortion of case law, former California Supreme Court Justice Joseph Grodin sent his own friend-of-the-court brief to the U.S. Supreme Court, imploring the justices to show more respect for California courts than the Ninth Circuit had done.

The Ninth Circuit's attempt to concoct standing for Newdow pointed in an ominous direction: toward the "federalizing" of family law, with federal judges telling states what they may or may not write into their family codes.

The U.S. Supreme Court recognized that danger yesterday: "Long ago we observed that 'the whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the states and not to the laws of the United States,'" Justice Anthony Kennedy observed in the controlling opinion.

Kennedy said the court must step back because it is an "unelected, unrepresentative" institution, and does not have license to make sweeping legal declarations when it is not confronted with a real case, involving real plaintiffs suffering concrete injuries that are susceptible to real judicial relief.

In other words, by showing Dr. Newdow the door and rapping the Ninth Circuit on the knuckles, the Supreme Court pledged allegiance to concepts at the foundation of American freedom: judicial restraint and local control. CRO

This piece first appeared in the Orange County Register.

copyright 2004 Pacific Legal Foundation



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