Previewing The Rest of the Current Supreme Court Term:
The "Pledge of Allegiance" Case

Court watchers will likely define this year's Supreme Court Term largely by two bookend blockbuster cases. One is the McCain-Feingold campaign finance law controversy heard and decided at the beginning of the Term. The other is the litigation brought on behalf of the Guantanamo detainees, in which the Court has agreed to hear oral argument near the end of its year.

But wedged in between these two momentous cases are a number of other very noteworthy disputes. Over the next few columns, I will preview a few of these important, but second-tier, items on the Court's winter and spring docket.

I start today with the so-called (and somewhat misnamed) "Pledge of Allegiance" case. (This label is to my mind somewhat misleading, since the dispute does not center on the Pledge as a whole, but rather only on the inclusion of one reference to religion in the Pledge's text.)

The litigation arose from an Elk Grove, California public school district 's policy requiring teachers to lead willing students in reciting the modern version of the Pledge of Allegiance, which includes the words "one nation under God." Michael Newdow -- a Sacramento physician and lawyer -- sued to challenge the policy as it applied to his (now) nine-year-old daughter.

Newdow argued that the policy violates the Establishment Clause of the First Amendment (which applies to the States through the Fourteenth Amendment). In a ruling that enjoyed national, if not international, notoriety, a panel of the U.S. Court of Appeals for the Ninth Circuit, by a 2-1 vote, agreed. Now, the Supreme Court will review the panel's ruling.

This case is unusual in a number of respects. First, Mr. Newdow (a relatively inexperienced lawyer) is representing himself in the Supreme Court.

Second, as I discussed in an earlier column, Justice Scalia recused himself from participating in the high Court's decision to accept review in the case -- apparently because he made some disparaging remarks about Mr. Newdow's claim while the case was pending in the lower courts. Presumably, Justice Scalia also will take no part in oral argument or the opinion(s) the Court issues. That leaves only 8 remaining Justices, and at least the possibility of a 4-4 tie (which would have the effect of leaving intact the Ninth Circuit's ruling.)

Third -- and obviously -- the case is unusual and important for the substantive legal issues it raises as well. Just how much, or how little, government documents, officials, rituals, etc. may make mention of religious ideas, symbols or imagery is a very complicated question - and one that becomes even more complex in the context of impressionable elementary school children. Any Supreme Court ruling on the Establishment Clause, but especially one affirming the decision of the Ninth Circuit, is sure to prompt a powerful reaction on the part of some segments of society -- particularly in a Presidential election year.

But things are even more complicated than all that. That is because it is not clear the Court should, or even can, reach the merits of Mr. Newdow's Establishment Clause claim at all. Before taking on the thorny Establishment Clause issues, the Court must grapple with another, and prior, question on which it has also granted review: "Whether [Mr. Newdow] has standing to challenge as unconstitutional a public school district policy that requires teachers to lead willing students in reciting the Pledge of Allegiance."

The legal doctrine of "standing" tries to identify who the appropriate persons to bring particular cases are. In federal court, standing is governed in part by requirements the Supreme Court has located in the Constitution itself.

The Court has repeatedly reminded us that Article III of the Constitution allows federal courts to hear only actual "cases and controversies" -- not abstract and fanciful disputes that unaffected parties might want resolved simply to satisfy their curiosity. For this reason, standing must be based on real "injury in fact" caused by a defendant's past or threatened actions. For instance, an individual on death row has standing to challenge the constitutionality of the death penalty, but another individual's anti-death penalty stance, however passionate, does not allow her to do so.

Moving beyond the Constitution's own requirements, the Supreme Court has said that ordinarily even a person who is suffering injury has standing to vindicate only his own legal rights. He does not have standing to vindicate the rights of other persons.

Suppose, for instance, that a city had a zoning policy designed to exclude blacks from living within city limits. A black person who was willing and able to live in the city would have standing to challenge to that policy under the Equal Protection Clause of the Fourteenth Amendment (and ought to win his or her suit.) But a white person who wanted to sell his home to a black person would not.

The white seller might have suffered "actual injury" -- a financial loss due to his inability to sell. But the white seller would be asserting the black buyer's rights, not his own. And under Supreme Court precedent, one cannot typically assert the rights of another.

One exception to this rule, however, occurs in the parent/child context. Often, parents are granted standing to assert minor children's rights. That is because of the special relationship they have with their children, and because their children are not able to assert their own rights easily. (For a discussion of whether parents have standing to use on behalf of their adult children, see a column on the subject for this site by Sherry Colb.)

Mr. Newdow, in filing his case in federal district court, invoked the Establishment Clause rights of his daughter, claiming to sue on her behalf. It also might seem that he should also be able to assert his own rights under the Establishment Clause to direct his daughter's religious, or non-religious, upbringing without interference from the State. (Prior Supreme Court cases have recognized just such a right, and Mr. Newdow explicitly invoked his own rights as well as his daughter's in his complaint.)

In this particular case, then, the standing questions become: May Mr. Newdow assert his daughter's Establishment Clause rights? And, separately, can he assert his own right to direct her religious, or non-religious upbringing without California's interference?

If he were her sole custodial parent, then the answer to both questions would quite clearly be yes. He would be able to assert his daughter's rights on her behalf. And he would also be able to assert his own rights to direct her religious, or non-religious, upbringing.

But, as the California family law history of this case shows, Mr. Newdow is not the sole custodial parent -- and the standing issue, thus, is more complex.

To begin, the child's mother, Sandra Banning, and Mr. Newdow were never married. And, over the years, they have expressed very different views on the upbringing of their daughter.

When Mr. Newdow filed his suit, both parents shared joint legal custody, which apparently required them to consult each other on major decisions affecting their daughter.

But while the case was on appeal to the Ninth Circuit, the California courts awarded Ms. Banning "sole legal custody as to the rights and responsibilities to make decisions relating to the health, education and welfare" of the daughter.

Under this ruling, the two parents were to consult each other regarding matters that affect the child. But the court also made clear that if "mutual agreement is not reached," then "Ms. Banning may exercise legal control" of the child.

Subsequently, the Ninth Circuit issued its decision, and Supreme Court review was sought. And after that, in September 2003, a California court restored "joint legal custody" to Newdow and Banning. But in its order, the California court also (and somewhat confusingly) ruled that Ms. Banning retains final say over major decisions affecting the child in the event the two parents disagree.

During the federal litigation, Ms. Banning has indicated that she does not want her daughter involved in the suit. (It is unclear to me, however, whether this preference comes from religious belief or not.)

Since, under California law, Ms. Banning has legal control of her daughter, it would seem that -- as with other decisions -- she may veto Mr. Newdow's decision as to whether her daughter will participate in the suit. Thus, it may be the case that Mr. Newdow lacks the right to sue on his daughter's behalf.

What about Mr. Newdow's assertion of his own right to direct his daughter's religious -- or nonreligious -- education? One might argue that, after the California court decisions, he has no such right left anymore -- for, again, Ms. Banning can always veto any attempt he might make to do so.

But that isn't necessarily correct. Just because Ms. Banning can veto Mr. Newdow's right to direct their daughter's religious, or nonreligious education, doesn't mean that that right doesn't exist -- or that she necessarily will assert her veto.

(This is not necessarily a zero-sum game in which one parent is adamant that the child must listen to the Pledge, and the other is adamant that she must not. Again, it is unclear from the record whether Ms. Banning is in favor of her daughter's listening to the pledge, or simply against her daughter's participation in the lawsuit.)

So, after the California court decisions, does Mr. Newdow still have a right to direct his daughter's religious education -- or doesn't he? If he does, he has suffered "actual injury" because she must listen to the Pledge, and thus has standing. If he doesn't, he hasn't -- and he lacks standing.

In my view (and the view of a recent amicus brief in the Newdow case), it is the California courts who should answer this question. The Supreme Court should ask them --- as it has the right to do -- to clarify what, if any, Mr. Newdow's family law rights are with respect to the religious upbringing of his daughter. Otherwise, the Court may rule based on a misunderstanding of California law in a highly-charged Establishment Clause setting that should be approached only with caution.