The Supreme Court wimps out, dismisses Pledge case.

As reported by Spocko in another thread it appears that the Supreme Court has decided to take the easy way out on the issue of the Constitutionality of the words “under God” in the Pledge of Allegiance:

Court dismisses Pledge case –

Five justices—led by Justice John Paul Stevens—said Michael Newdow, the father, did not have legal standing to bring the case. Newdow, who is involved in a custody dispute with the mother of their third-grade daughter, could not speak for the girl, the court ruled.

Writing for the majority, Justice John Paul Stevens said, “When hard questions of domestic relations are sure to affect the outcome, a prudent course is for the federal court to stay its hand rather than reach out to resolve a weighty question of federal constitutional law.”

He added, “Newdow lacks prudential standing to bring this suit in federal court.”

The longer this dragged on the more I had a feeling things would go this way. Given the Court’s rulings in the past they probably would have been hard pressed to justify not declaring the words a violation of the Establishment clause. Ruling that it is in fact a violation in an election year when Senators are already trying to introduce legislation that would ban the Court from ruling on such issues is probably not a wise idea either. They’re well aware this is just postponing the issue until someone who has legal standing raises the challenge, but they may be hoping to buy some time for the political winds to change before it comes up again.

I’m disappointed, but not surprised. It at least leaves the door open for the question to be raised again.

12 thoughts on “The Supreme Court wimps out, dismisses Pledge case.

  1. I’m also dissapointed, however I feel it’s a victory for democracy in that they didn’t outright rule that the words “under God” were constitutional. It is my hope in the near future someone with a better case will be heard and they will be forced to rule.


    Or MAYYYYBE, Les, YOU could.  You have a daughter (and a free thinker at that)!  Be one hell of a way to make the news, and you’d probably do an even better job than Newdow.

    I’m not surprised either, but I’m definitely pissed off.  This better be brought up again, and soon, because it’s making my blood boil.

  3. According to a report on this evening’s News Hour, there are three more cases in the pipeline. The reporter, who presented the story, indicated that the vote could go either way.

    She had a different take on the concurring opinions than the CNN story. O’Conner apparently supported the administration position that ‘under God’ is nothing more than ritual deism. Thomas said that, to be consistent with case law on the establishment cause, the words should come out. However, he also believes that that the case law is wrong and should be rewickered.

  4. Dahlia Lithwick, over at Slate, is becoming one of my very favorite writers.  She makes a good point in her article.  Some excerpts:

    Ask a divorced or unmarried parent with primary custody of a child what was at stake in this case, and you’ll get an answer that differs profoundly from the headlines: The lawyer’s trick here came from Michael Newdow, who wanted to override the religious decisions made by his daughter’s mother. (The two never married.) Allocating the duties and obligations of custodial and noncustodial parents has always been the province of state courts. It’s a hideous job, and no one should have to do it. But the simple fact is that judges decide on a primary parent, and the other parent can either try to change that arrangement or learn to live with it. Initially, Newdow went for door No. 3. He tried to use a backdoor to force the issue first and only tried to modify the custody agreement later.


    Writing for five justices today, Justice John Paul Stevens quotes a case from 1890 to remind us that it’s not ducking, dodging, or chicken to insist that “[t]he whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States.” He goes on to differentiate between the right conferred by California state law—to influence a noncustodial child’s religious life—and the odd new right created by the 9th Circuit—to create an exclusive religious bubble around your noncustodial child’s life. “The California cases simply do not stand for the proposition that Newdow has a right to dictate to others what they may and may not say to his child respecting religion.”

    Given all that, I’d have to agree that we can get a better, less complicated, more solid case in front of the Supreme Court.

  5. He goes on to differentiate between the right conferred by California state law—to influence a noncustodial child’s religious life—and the odd new right created by the 9th Circuit—to create an exclusive religious bubble around your noncustodial child’s life. “The California cases simply do not stand for the proposition that Newdow has a right to dictate to others what they may and may not say to his child respecting religion.”

    The custody angle makes this a poor test case for the pledge because it blurs the point.  I’d prefer some other case to make the point. In Newdow’s defense I imagine he isn’t trying to regulate what others say to his daughter, but what others force his daughter to say.  That was always the thing that pissed me off about having the pledge shoved down my throat.

    Loyalty oaths are bullshit.  Spies and saboteurs say them without hesitation, and true patriots often balk at the pointless exercise. 

    JoshMan3D, you’re on the right track!  A good place to start would be to write to the local newspaper and send a copy to your congressman (who will have to vote on the issue sooner or later as someone tries to end-run a Supreme Court decision.)  He or she will send back a frustratingly noncommittal reply but you will be registered in some statistical total in the congressman’s office.  (Send another copy to your state governor, and your state representative, too, and anyone else you can think of!)

    Captcha: trial

  6. I’m afraid that future cases will not have much better luck. It’s fine to say that the door is open…but in the near term anyway, it really isn’t.

    The decision to call this a child custody ruling came on flag day, and the 50th anniversary of the addition of “Under God” to the pledge. I’m sure that speaks volumes more than any doors that were supposedly left open.

    So I think that at least for the next 20 years or so, we’re going to have to live with it—and find different avenues to protect our religious (and other first ammendment) freedoms.

    Seizure Laws anyone? Patriot Act? Torture is just a college prank?

  7. I don’t think it’s as much a matter of getting someone with a “solid” case, but more a matter of timing with the political environment.  Ruling in favor of Newdow will likely hurt the Court at this time. 

    Captcha: action

  8. I think the whole issue about the father trying to control the mother’s religious decisions for their daughter isn’t really the core of the case in that he seemed to be arguing that his daughter was being inundated with religious messages even at school. A point I agree with.

    The fact that this whole debacle was a “hot issue” makes me wonder. Bush and Clinton have both had a terrifying reliance on religion. Let us take into consideration the idea of a “National Prayer Breakfast”. All said in the past fifty years religion has become such a central element to the governance of the USA that the politicians can’t even think of the possibility that this may be stomping all over someone’s rights.

    I look at this case as another extension of this political atmosphere. Yeah, the possibility of another case is still there, but how the hell do you manage to bring that up to the Supreme Court anyway? What kind of case could I make that I don’t want to hear such things? I’m no longer in school, and apparently I can’t even put the matter up for a child since the court says I can’t speak for said child as to whether this is good or bad. I most certianly can’t sue the government just because it’s there in the first place. Once again that would be too direct and there’s no precedent that I’m aware of that would allow such a case to be heard on much of any level.

    The whole thing stinks and leaves me with a very bad taste in my mouth. I think it’s simply an example of how the government doesn’t seem to give a shit about religious freedom. You’re free to follow any monotheistic religion, but that’s it. You most certainly aren’t allowed not to believe. According to them that’s just crazy. Bad enough if you don’t say the words, but even worse if you complain about having to hear everyone else around you drone them out in a trancelike state.

  9. 5 of the 8 Justices would have voted to delete ‘Under God” from the pledge had they actually made a decision instead of evading the issue.
    All thats needed is another Atheist to step up to the plate with “Standing” and its gone.

  10. I thought that this was an interesting analysis.

    Including Rehnquist’s part of the dessenting opinion (which I find extrememly troubling).

    “There, Rehnquist rightly advocated deference to the Ninth Circuit’s determination of state law and therefore standing, but went on to opine that the pledge was constitutional because the Pledge “sums up the attitude of the Nation’s leaders.” The Chief’s reasoning is indefensible. According to Rehnquist, the phrase is fine as long as it means “that God has guided the destiny of the United States . . . or, that the United States exists under God’s authority” – for after all, in his view, who could argue with those facts?”

  11. QM, great link, thanks.  I learned a lot from that one.  Okay, back to the original theory:  that the Court chickened out …

    (captcha:  persons)

  12. Swinging by to drop a link to Mike Newdow’s editorial in the NY Times today (requires free registration).

    He ends the piece thus:

    Our Constitution is the rule book that is supposed to guarantee to every citizen that each branch of government will do its duty and uphold his or her rights. In this case, Congress broke the rule that says government may not take a position on questions of religious belief. Then the state court system broke the rule that says that fit parents have a fundamental constitutional right to love and protect their children (as might be appreciated by the fact that no reasonable justification for my loss of legal custody has ever been presented). And now — in the highest court in the land — the federal courts have broken the rule that says they will adjudicate any claim of injury that is properly brought before them.

    God bless America.

    (captcha: real)

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