Never Mind the Pledge
Tuesday, June 15, 2004; Page A22
FIFTY YEARS TO the day after Congress inserted the words "under God" into the Pledge of Allegiance, the Supreme Court issued a resounding opinion refusing to say whether making schoolchildren utter these words violates the Constitution. California atheist Michael A. Newdow, the court ruled, lacked standing to challenge the pledge, because he does not have legal "control" over his daughter, a student in a school district where children recite the pledge daily. The decision turns one of the court's hot-button cases into a real dud -- and for this Americans ought to be grateful.
Resolving a case on grounds of the legal standing of a litigant always has the feel of a cop-out. But the doctrine actually serves a vital function in the U.S. judicial system, particularly in constitutional challenges to laws and government policies. It prevents the courts from considering complaints unnecessarily. The pledge case is an excellent example. The pledge, after all, has been around in its current form for a half-century, and it has existed with relatively little political or legal controversy. Even as public school prayers were banned, and people began suing over religious symbols such as the Ten Commandments in public buildings, people haven't been flooding the courts with complaints that they or their children are unconstitutionally oppressed by the Pledge of Allegiance. Insisting that the courts refrain from considering such matters unless someone with a clear stake in them objects is one of the central checks against overly broad judicial power.
In this instance, Mr. Newdow has no legal control over the educational decisions of his daughter, who is, incidentally, religious. It is easy to sympathize with his desire to "inculcate in his daughter . . . the atheistic beliefs he finds persuasive." But a state court order had given the child's mother -- who has no objection to her saying the pledge -- "sole right to represent [the daughter's] legal interests and make all decision[s] about her education." Yet the U.S. Court of Appeals for the 9th Circuit considered his complaint despite his lack of custody. Writing for a five-member court majority, Justice John Paul Stevens rightly argued that being a father was not enough. The federal courts defer to the states on questions of family law, Justice Stevens wrote. And when a parent's standing is founded on "rights that are in dispute" at the state level, "the prudent course is for the federal court to stay its hand rather than reach out to resolve a weighty question of federal constitutional law."
The wisdom of this statement was illustrated by the three justices -- Sandra Day O'Connor, William H. Rehnquist and Clarence Thomas -- who disagreed and wished to reach the merits and uphold the pledge. Between them they produced three different opinions, and Justice Thomas used the occasion to advance a truly radical vision of church-state separation. (Justice Antonin Scalia recused himself from the case.) There is no guarantee that the court would have spoken coherently and constructively about a genuinely gray area of law had it tried. Punting may deflate the end of the court's term, but passivity here was a virtue, not a vice.
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