Jewish World Review June 21, 2004 / 2 Tamuz, 5764
The Supremes ducked a definitive decision in a ruling that raises questions about future child-custody issues
The United States is responsible for some of the world's greatest dance numbers. There was the jitterbug, the hustle, the locomotion, the bump, the twist and the culturally irreplaceable bunny hop.
But there is no dance smoother and more exciting to watch than the Supreme Court Shuffle. The public watched the shuffle this week performed by eight justices who found a way of avoiding any ruling on the constitutionality of the words "under G-d" in the Pledge of Allegiance. Instead, a unanimous court (minus Justice Antonin Scalia, who recused himself) found that the father filing the lawsuit did not have standing - the right to bring the case in the first place.
It's the Supreme Court Shuffle: just a step to the right, then a slide to the left, then a hop over the merits and do it all again.
Indeed, we may need to do it all again since the decision answered nothing. The court found that the plaintiff, Dr. Michael A. Newdow, lacked standing because, as a divorced father without sole custody, he did not have the legal right to speak for his daughter.
Thus, it will be only a matter of time before an atheist with custody will return with standing and a child in hand.
Ironically, while limitations on the recitation of the pledge might not have had a deep effect on many people's lives, the procedural ruling could. Roughly half of the marriages in this country end in divorce, with more than 20 million divorced adults. An estimated 13.4 million parents have custody over 21.5 million children, and 60 percent have some form of support agreement.
In such circumstances, one parent is often given primary authority over the children despite two equally committed parents. Newdow is one such parent. Custody between him and his ex-wife has changed over the years, as is common in such cases. By the time the case went to the Supreme Court, the mother, Sandra Banning, had legal custody but, according to court documents, Newdow retained an active role in his daughter's upbringing.
Justice John Paul Stevens, however, found that it is Banning who has the final say over their daughter's education and that, while Newdow is allowed to "instruct his daughter in his religious views," he could not bring a case based on his parental rights without legal custody under California law.
The decision that a father lacks sufficient standing to bring such a case should be a matter of great public concern. Indeed, three justices disagreed and felt that Newdow had standing (as a lower court found) based on his status as a parent. Ironically, if he had some small financial interest in the pledge, he would have had standing. Yet, with a daughter in the school system, he lacks standing simply to ask for review of an allegedly unconstitutional policy. The decision is only the latest example of how the court pays lip service to the constitutional rights of parenting, but routinely ignores that basic right in the slightest conflicts, including a simple test of standing.
Notably, the court appears wrong even in its reading of California law. California courts have emphasized the right of both parents to bring actions to protect their rights. Indeed, the California courts are marching in the opposite direction from the Supreme Court. Recently, in an important ruling, the California Supreme Court ruled that custodial parents could not claim the absolute right to dictate changes in the lives of their children by moving out of state - and away from a non-custodial parent. The court found that the non-custodial parent has a voice in such a move and is not trumped by the mere fact that custody resides with the other parent.
While I would have voted against Newdow on the merits, I believe that this decision is an abuse of his rights as a parent and the rights of millions of divorced parents. As we struggle to encourage parents to be more involved with their children at schools and at home, this decision treats non-custodial parents like legal nonentities. It views parenting as entirely the construct of a family court rather than one of the most fundamental interests protected by our constitution.
If the choice is between protecting the pledge and protecting our rights as parents, I would prefer to protect the parental rights. Instead, the Supreme Court preserved the pledge by peeling away the rights of parents. The impressive thing is that the justices were able to do so much damage without even getting to the merits or issuing a substantive constitutional decision.
None of this is meant to suggest that the Supreme Court Shuffle is an easy number. It takes eight or nine members dancing in a line with their eyes tightly closed to avoid anyone butting in with a dissonant step. At the head of this constitutional conga line was an 84-year old justice, John Paul Stevens, who showed that an octogenarian can still dance wildly in a crowded legal room without touching a single substantive issue. As for parents, they will remain the perennial constitutional wallflowers, waiting awkwardly for another dance and some justice willing to notice them.
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JWR contributor Jonathan Turley is a professor at the George Washington University Law School.
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© 2003, Jonathan Turley