Dark Jedi

In reference to civil rights cases, and more specifically, Newdow's use of his daughter for the pledge case.
Why was this necessary to get the case heard, and can you think of a way to have gotten standing otherwise?

If you get time, that is.
Thanks.

Morat

If I can answer: I don't think so. First, Newdow's daughter can believe anything she wants about God, the pledge, and saying it.

She can be a devoted Christian who would lay down her life to keep every word of the Pledge the same.

However, her Dad is her legal guardian, and thus responsible for her religious upbringing. Now, he cannot stop her mother (who also, I'm guessing, is her guardian) from exposing her to whatever religion she wishes, but he does have standing if the school tries it.

I can't think of another aspect of life that states the Pledge regularly, and none that involved state-led recitation involving children, which is important if you want to avoid the easy de minimus dismissal.

Alonzo Fyfe

The principle of 'standing' says that, in order to get a case heard before the courts, you must have something to lose -- or something at stake -- in the decision. The court will not take a case if you merely disagree with a law 'on principle'. The court will say that you lack standing, and will throw the case out.

This is the relevance of Newdow having a daughter in school. Without this, then Newdow was simply objecting to the law on principle -- it did not materially affect him one way or another. He did not have standing.

How, he has a daughter who is actually affected by the law -- the law is actually being enforced against his daughter. It is now a part of his family's life that is being directed by this law.

As a father, Mr. Newdow has a right to raise his child as he sees fit (within limits). Part of this is to direct his religious education. Every day the school system tells her daughter that atheists are outsiders, an excluded group. This can be expected to be a barier (a form of coercion) limiting her daughter's ability to give her father's beliefs due consideration. Even if the father says that there is nothing wrong with being an atheist, the daughter goes to school and gets a contrary message.

Mr. Newdow, now, has standing in claiming that it is illegal for the government to be giving him a contrary message that his (the father's) beliefs are to be rejected.

ohwilleke

Standing, simply stated, says that only someone who is really personally impacted or damaged by an illegal action is allowed to bring a lawsuit based upon it. To some extent this flows from Article III of the U.S. Constitution which states that only real "cases or controversies" are within the jurisdiction of the federal courts. The federal courts are not allowed to make decisions based on mere hypothetical situations or abstract legal questions. They can only resolve real disputes.

The black letter rule is that the party who invokes the court's authority must: "show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant, and that the injury fairly can be traced to the challenged action and is likely to be redressed by a favorable decision." Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464 (1982).

You do not generally have standing to bring a suit alleging that a law is unconstitutional simply because you are a taxpayer (unless the suit involves an appropriation of money by Congress itself expressly barred by the Constitution and not simply outside a specific constitutional spending authorization) or as a citizen. You generally have to show an injury particular to you distinct from other taxpayers or citizens.

In the Newdow case, the daughter's standing is based upon the injuries that the daughter suffered by risking scorn and isolation if she does not participate in reciting the pledge, which is alleged to be an establishment of religion. Newdow himself may also have standing, because his constitutional right to direct the religious upbringing of his child may be interfered with by government action which tends to pressure his daughter to make a religious acknowledgement by reciting the pledge. Newdow's right to sue on behalf of his daughter flows from (1) his status as parent as a natural guardian of his child under California law, (2) a formal appointment as a guardian for his daughter, if any, or (3) his status as his daughter's "next friend" since he is a person with a relationship to her who is interested in her welfare at a time when she is unable to bring suit of her own initiative.

There are other ways that someone could have gotten standing. A teacher could bring suit alleging that his or her duties include directing children to recite the pledge which poses a conflict between professional duty and cooperating in a violation of civil rights under the establishment clause. But, given the court's particular concern about the harm to children, even when they opt out, this could be more difficult to establish.

Similarly, an objection to "In God We Trust", might be brought by an atheist products merchant who as a matter of commercial necessity must do business in cash and does not wish to express his opinion on this issue (a similar suit was brought against a person who had to have New Hampshire Live Free or Die plates, and was charged with having improper plates, although I think the remedy awarded was simply to allow him to black out that part of the plate). But, standing is generally a sticky issue in establishment clause litigation.

[ July 11, 2002: Message edited by: ohwilleke ]</p>

Grumpy

In the case of Newdow, it might be worth pointing out that all 3 judges on the Ninth Circuit Appeals panel agreed that he had standing to bring the case. Of course, that unanimous opinion could still be overruled en banc or by the Supremes.

Bill

I have pointed out elsewhere that it is unlikely that the Supreme Court will reverse the ruling if it gets to them intact. The 9th Circuit opinion relies strongly on the prior written opinions of the two "middle of the road" members of the Supreme Court, Justices O'Connor and Kennedy. Kennedy is the more conservative of the two, and he is on record as stating that the "under God" in the Pledge is unconstitutional under current legal standards (he said so in a dissent arguing that the standard should not be adopted because making the Pledge unconstitutional would be one of its consequences).

So, I predict that those who are themselves predicting a rapid demise of the Newdow case are going to be very disappointed as this case moves forward in the courts.

== Bill

Dark Jedi

Thanks, Ohwillike and others. This helps me understand, and thus accurately debate, the need for involvement of the child.

For the record, I disagree with the involvement of a child in such a situation due to the social fallout they will invariably experience. I do, however, see how it is needed.
I wanted to understand the reason and need to do so. I never knew about the 'standing' situation before. That clarifies why so many things go unaddressed. They are simply too hard to prove damage, or insignificant taken individually.

jlowder

Kennedy stated that IF one interprets the Establishment Clause as prohibiting mere governmental endorsement of religion, then the words "under God" in the Pledge are unconstitutional. However, in that same dissent, Kennedy made it very clear that he rejects the "endorsement test" as a proper interpretation of the Establishment Clause. So I'm afraid I cannot agree with you that Kennedy is likely to vote in our favor. I hope he does, but his past comments do not make it likely.