L. Neil Smith's
Number 267, April 18, 2004

Sing The Song, Children!

Parental Rights and the Pledge
by Wendy McElroy

Special to TLE

Elk Grove Unified School District v. Newdow stirred a furor in late March when it went before the Supreme Court to challenge the constitutionality of the words "Under God" in the Pledge of Allegiance.

But the conflict has raised an entirely different question: Does a parent's custody status determine if he or she has standing in a court of law concerning their child's education, medical care, or other related issues of well-being?

The Supreme Court case revolves around Michael Newdow. He is the atheist who brought a lawsuit against Congress, the President, California, and two school districts on behalf of his young daughter who recites the Pledge in public school. On June 26, 2002, the United States Court of Appeals for the Ninth Circuit (San Francisco) [.pdf] found in favor of Newdow's claim that "Under God" violated the Establishment Clause of the First Amendment which mandates a rigid separation of church and state.

Thereafter, Sandra Banning, the devoutly Christian mother, filed a motion with the same court to challenge Newdow's standing that is, his legal right to bring the lawsuit. On February 6, 2002, the California Superior Court had issued in an order that read, "The child's mother... to have sole legal custody as to the rights and responsibilities to make decisions relating to the health, education and welfare of [the child]." Newdow had the right to "consult" but Banning had "legal control."

(Until then and during most of Newdow's lengthy court proceedings, the custody arrangement had been informal. Indeed, through separate legal proceedings, he now reportedly has joint legal custody and sees his daughter about 30 percent of the time.)

The main question before the 9th Circuit Court in the second instance was "Does the grant of sole legal custody to Banning deprive Newdow, as a noncustodial parent, of Article III standing to object to unconstitutional government action affecting his child."

On December 4th, 2002, the 9th Circuit Court found that Newdow retained certain parental rights and noted, "California state courts have recognized that noncustodial parents maintain the right to expose and educate their children to their individual religious views, even if those religious views contradict those of the custodial parent or offend her." Moreover, it found that Banning had no right to consent to "unconstitutional government action" on her daughter's behalf and, therefore, had "no protectable interest at stake."

Circuit Court Judge Ferdinand F. Fernandez wrote a concurring opinion specifically "to emphasize that in this order we decide that Newdow's legal status under California law vis-à-vis his daughter does not deprive him of standing." Newdow also altered his challenge, undoubtedly to make his position before the court more secure. The lawsuit was no brought longer on his daughter's behalf but on his own as a parent.

In reviewing this case, therefore, the US Supreme Court will not only consider the separation of church and state but also the legal standing of a noncustodial parent.

In his brief to the Supreme Court on behalf of the United States one of the respondents—Solicitor General Theodore B. Olson presented two questions in this order: first, Newdow's standing; second, constitutionality.

Regarding the first, Olson argued, "[T]he prerogative of suing to enforce the child's rights rests exclusively with the mother because, in this case, she has the legal authority to make final and binding decisions concerning the child's 'health, education and welfare'."

The case is a political nightmare, as the Supreme Court knows from the backlash directed at the 9th Circuit Court. On the same day as the decision, an outraged Senate unanimously passed a resolution in support of the existing pledge. According to a Newsweek poll (June 29th) close to 90 percent of Americans wanted "under God" to remain. Even the White House sent a brief to the California court expressing opposition to change.

The Supreme Court has the option to throw the Newdow case out on a technicality of "standing." The prospect must be tempting but it would be a mistake to dismiss the case on anything but its substance. Without meaning to do so, the Supreme Court could deal a severe blow to the important and entirely separate issue of father's rights.

It is a shame that these two matters have become interwoven. Many who decry the "attack" on religion would normally be sympathetic to a responsible father who wished to participate in parental rights.

President Bush is an example. He has spoken passionately on behalf of fathers. At the National Summit on Fatherhood, he called being "dad" the greatest duty and most important title a man could ever have. Yet he is likely to applaud loudly if the Supreme Court throws out the "Pledge case."

Just as separation of church and state should live or die on the merits of its substance, so too should the question of a noncustodial parent's standing in court. It is a question that should not be discarded on the back of a technicality.

Visit my home page and blog, drop by ifeminists.com, For photo (05/02/02)


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