Clicking on banner ads enables JWR to constantly improve
Jewish World Review June 21, 2004 / 2 Tamuz, 5764

Jonathan Turley

JWR's Pundits
World Editorial
Cartoon Showcase

Mallard Fillmore

Michael Barone
Mona Charen
Linda Chavez
Ann Coulter
Greg Crosby
Larry Elder
Don Feder
Suzanne Fields
James Glassman
Paul Greenberg
Bob Greene
Betsy Hart
Nat Hentoff
David Horowitz
Marianne Jennings
Michael Kelly
Mort Kondracke
Ch. Krauthammer
Lawrence Kudlow
Dr. Laura
John Leo
Michelle Malkin
Jackie Mason
Chris Matthews
Michael Medved
Kathleen Parker
Wes Pruden
Sam Schulman
Amity Shlaes
Roger Simon
Tony Snow
Thomas Sowell
Cal Thomas
Jonathan S. Tobin
Ben Wattenberg
George Will
Bruce Williams
Walter Williams
Mort Zuckerman

Consumer Reports

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.

Donate to JWR

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.

Every weekday publishes what many in Washington and the media consider "must reading." Sign up for the daily JWR update. It's free. Just click here.

JWR contributor Jonathan Turley is a professor at the George Washington University Law School. Click here to visit his website. Comment by clicking here.

05/19/04: This roughhousing at recess must cease
05/04/04: A Peddler of Court Gossip May Pay the Piper
04/01/04: One angry Tyco juror does not make twelve angry men
03/23/04: When ‘choice’ becomes tyranny
03/18/04: Valued bond between client, lawyer eroding
03/12/04: When Silence Isn't Golden: Martha Stewart's failure to testify holds a lesson for other celebrity defendants
03/09/04: Non-profits' executives avoid scrutiny, valid reforms
02/12/04: Reparations cause is coming up empty: Potential lawsuits destined to remain meritless in courts
02/03/04: Senate powder is the least of Congress' security concerns
01/29/04: Case of the Missing Evidence: Facts are often withheld from juries, which can lead to ill-informed verdicts
12/31/03: Celebrity is often its own best defense
12/27/03: U.S. soldiers lack best protective gear
12/17/03: Going for the gold in a competition of the corrupt
11/25/03: Will Malvo jurors spare life of young suspect?
11/11/03: The Black Tax: Of charlatans, crooks and victims and the reparations scam
11/04/03: Sniper case lacks appeal, public lessons of other cases
10/02/03: Is a soldier's life worth more than $650?
08/26/03: One justice wields too much power on today's Supreme Court. It's time to make the top bench much bigger
08/11/03: Don't let jobs grow on family trees
06/26/03: A Ruling That Only Goldilocks Could Love; We still don't know how much weight to give race in college admissions
06/24/03: 'Educating' Congress at the hands of lobbyists
06/12/03: Crooked arm of the law
06/10/03: Defense on lay-away
05/23/03: Innocence doesn't pay, either
05/15/03: A see-no-evil parole system
05/08/03: An American Gulag?
05/01/03: CUNY Law gives grads a cynical parting gift
04/22/03: Congress Must Send Spammers a Message
04/16/03: End Apartheid in the State Prisons
04/07/03: NBC's sacking of Peter Arnett over a critical analysis plays well in Baghdad
03/07/03: Rights on the Rack: Alleged torture in terror war imperils U.S. standards of humanity
02/25/03: How democracy could clear our snowy streets
02/11/03: Sanity and Justice Slipping Away
01/28/03: Quit horsing around, senator
01/14/03: Public Payroll: a Family Affair; Nepotism in Washington poses a threat to institutional integrity
01/09/03: DARPA and democracy
12/24/02: The 13th juror
12/19/02: Back to the admissions morass
12/10/02: Pro-Choice at Expense of Free Speech; NOW case against abortion protester may backfire
12/02/02: A cruel bait and switch for vets
11/15/02: Junk justice
11/07/02: OUR second-class soldiers
10/30/02: 'Quirin' revisited: The dark history of a military tribunal
10/22/02: Un-American Arrests: Mass detainments of the innocent may be the ultimate form of crowd control, but the tactic is unconstitutional
10/16/02: Reverse pawn shops? Broke state officials across the country have been looking for businesses to buy their assets at a fraction of their worth to pay for budget shortfalls
10/08/02: A legal tattoo hullabaloo
10/02/02: Gagged justice sets dangerous precedent
09/25/02: The Great Salmon Rose Caper
09/17/02: Reparations: A Scam Cloaked in Racial Pain
09/12/02: This country's hidden strength
09/04/02: 1st Amendment protects even the ugliest among us
08/28/02: A secret court goes public
08/20/02: I defended Ashcroft during his nomination; he's become a constitutional menace
08/07/02: San Francisco embracing states-rights
07/31/02: Who needs Jenny Craig when you can have Johnnie Cochran?
07/22/02: The meaning of justice and the madness of Zacarias Moussauoi
07/16/02: The President vs. the Presidency
07/08/02: How one woman's whims dictates the rights of millions
07/02/02: Just say 'no' to extracurricular activities
06/24/02: Missing Ted Bundy
06/10/02: A comedy of eros06/14/02: 05/31/02: Beyond the 'reformed FBI' hype
05/23/02: Do we really need a Federal Marriage Amendment?
05/19/02: No "battlefield detainee" should leave home without a U.S. birth certificate
05/10/02: The perfect constitutional storm
04/26/02: 'Slave of Allah' wounds justice
04/12/02: The importance of being nameless
04/05/02: The adjusted value of justice
03/18/02: How Clinton got off: A law professor's take
03/11/02: Profiling and the terrorist lottery
03/05/02: Yes, Sharpton, there was a failure of justice
02/28/02: The Lay of the land
02/14/02: Living in constitutional denial
02/05/02: Legal Lesson for Afghanistan: War's Not a Slip-and-Fall Case
01/25/02: Sever "Jihad Johnny"'s ties to his homeland
01/21/02: "Out of sight, out of mind," but they're still prisoners
01/14/02: Your papers, please!
01/07/02: Prescription for disaster
12/18/01: Madison and the Mujahedeen
12/07/01: In the U.S., espionage crime is easy to understand but difficult to prove
11/19/01: What type of 'creature' would defend bin Laden?
11/19/01: Could bin Laden be acquitted in a trial?
10/28/01: The ultimate sign of the different times in which we are living
10/25/01: Al-Qaida produces killers, not thinkers
09/28/01: The Boxer rebellion and the war against terrorism
08/31/01: Bring back the silent Condit
08/27/01: Working out the body politic

© 2003, Jonathan Turley