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
Johnson represents one of the Sea Scouts challenging Berkeley's
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.
Than The Pledge
The 9th Circuit tried to take over state law in their
attempt to abolish the Pledge...
[Harold Johnson] 6/17/04
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
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.
2004 Pacific Legal Foundation