SCOTUS Post #1

The first of at least two posts about the recent Supreme Court of the US (thus, SCOTUS) ruling in what is being referred to in the media as the "pledge case". As everyone should be aware by now, Michael Newdow challenged the constitutionality of the pledge being recited in public schools because of the inclusion of the words "under God" in the pledge. The basis for this claim is that he is the parent of a elementary age child in public school who might misinterpret the Pledge as the government endorsement of a religion and since Newdow is an atheist, endorsing a religion with a deity violates his and his daughter's rights. The problem, though, is that Newdow does not have any legal custody of his daughter and this is the issue that the Supreme Court ruled on.

One of the keys to any lawsuit is whether the person bringing the lawsuit has legal standing in the matter they are trying to get adjudicated. Another key is whether the court in which the matter is brought has jurisdiction over the question and/or persons at issue. If the person bringing the suit does not have standing, or the court does not have jurisdiction, then the illegality or the issue doesn't matter. Grocery stores can leave all the grapes on the floor that they want, but if you're not one of the people who've slipped and fallen on one, you can't sue them for their negligence, despite however negligent that behavior might be. Similarly, if you're the victim of a crime, but the statute of limitations has run out, the illegality of the crime is irrelevant.

In this case, then, there were two distinct questions the Court had to answer, and the answer to the second question was predicated on the outcome of the first question. First and foremost, the Court had to determine if Newdow had the necessary legal standing to challenge the constitutionality of the Pledge and its use in public schools. Then, and only then, if Newdow had the necessary standing, the Court had to review the issue of the pledge. Thus, if Newdow didn't have the necessary standing, the Court did not have to answer the pledge question(s).

Lets look at the standing issue. Family law is wholly owned and adjudicated by the states and the state court systems. In Newdow's case, the state court had awarded sole custody of the daughter in question to the daughter's mother (Newdow and the mother were never married). Legally, this gave the mother complete and sole legal responsibility for her daughter. The practice of establishing sole custody is a standard judicial practice and was not brought as a issue by Newdow in his challenge against the pledge. As such, the response of the Supreme Court is correct. The mother had court ordered sole custody, Newdow didn't, and thus he didn't have standing. Every court that ruled on the Constitutionality of the pledge issue erred by granting that Newdow had standing.

Though viewed as a technicality by many, including the media, this is potentially a huge custodial rights issue had Newdow been granted standing. Had the Supreme Court granted Newdow standing, it would have been interpreted by lower court as giving certain rights to non-custodial parents that do not exist today. This would have lead to innumerable challenges to current custodial orders and opened up an entire generation of split parent children to additional custodial scrutiny. The impacts of such a decision would have a huge impacts on the court systems and the families involved, thus the Court was wise to rule that Newdow did not have legal standing. Even though this issue did not have the same level of media attention as the pledge issue, it is of equal or more importance.

The confusion arises, though, because while this appears to be a technicality, in reality, it isn't. In ruling that Newdow doesn't have the proper standing to bring his pledge challenge, the Court was able to then have no opinion about the constitutionality of the pledge issue itself. For those who wanted a decision on this secondary issue, there is disappointment and for the media, a big let down. Thus, in reporting that the Supreme Court "ducked" the issue or in the instances where the media reported that the Court "upheld the Pledge" the media errs greatly to the detriment of their readers. The Court did not duck the issue; they ruled on the first matter at hand. Nor did they necessarily uphold the pledge; they merely reversed the 9th Circuit opinion that it was unconstitutional, because of Newdow's lack of standing.