One Child Indivisible
By Ellen Goodman
Saturday, June 19, 2004; Page A23
BOSTON -- I confess that I was a teensy bit relieved when the Supreme Court found a way to avoid ruling on the underlying issue of the Pledge of Allegiance case. Having pledged before and after the "under God" clause was added, I didn't think those two words were any big deal. But I did suspect they were unconstitutional.
So I figured that the court dodged a bullet in the culture wars. But now I'm afraid it only provided arms for the custody wars.
The court dismissed the case on the grounds that Michael Newdow, the biological father, didn't have the standing to bring the case to court. His kind of father -- without full legal custody -- didn't have the parental right to speak for his child.
As one wag put it, the justices found it easier to separate parent and child than to separate church and state.
Allow me to remind you about Michael Newdow, doctor, lawyer, atheist and general pain in the neck. Newdow is living proof that litigious life begins at conception. From the beginning, he claimed to be the victim of a "date rape" that produced his daughter. He signs his child support checks with the motto "under protest."
After Newdow came around to fatherhood, however, he did it with gusto. Custody suits became such a fixture of his life that one judge sentenced him to co-parenting classes. Indeed, on the day that Newdow lost in the Supreme Court, he also lost an attempt to overturn the law that made him responsible for the legal fees -- $362,000 worth -- of the mother, an at-home secretary.
When his daughter reached kindergarten in Sacramento, Newdow claimed that his right to influence her religious -- or anti-religious -- views was being infringed on by the teacher-led pledge to her country "under God."
In some ways, this case was part of the endless custody disputes. The girl's mother, Sandra Banning, is a born-again Christian who approves of the God clause. The atheist and the born-again wrangle over their daughter. But it was Newdow who took on the Constitution.
Catherine Ross, a family law professor at George Washington University, drops her professorial mien long enough to call Newdow "a litigious idiot." But she too wonders if the court, in its desire to find an "exit strategy" to an explosive case, "thought through the possible implications" of finding that parental rights depend on custody.
"What does it mean," asks Ross, "if you are a biological parent who pays support, has a relationship with the child, not someone who ran off? Does this mean you still have nothing to say about the values, the choices and the manner of raising your child? Does it mean you can't turn to the courts?"
If a father like Newdow, who lives with his daughter 10 days a month, has no standing, says Ross, "it sends a message that if you are getting divorced or have a child out of marriage, you better fight for joint custody."
Both the courts and the culture have been encouraging the greater involvement of two parents -- even estranged parents -- in their children's lives. In Newdow's case, the U.S. Court of Appeals for the 9th Circuit ruled that he retained a parental right to bring the case to court. In another highly controversial case, the California Supreme Court ruled recently that the custodial parent couldn't unilaterally move the kids out of the state.
I can't help feeling sympathy for Sandra Banning, who is living every split-up mom's nightmare. The culturally approved ideal of unattached but equally attentive parents produces as much conflict as compromise. Breakups are often accompanied by a struggle over values and religion.
And when co-parents aren't co-ing, who makes the decisions? I can only imagine a disaster if every parental disagreement -- sex education? creationism? -- was fought out in the schools or the courts.
As for the much-touted "best interests of the child," who decides that? Newdow's daughter apparently had no objection to the God clause. Do her attitudes matter? Now 10, she's just relieved the whole thing is over.
Still, this cautious detour around the thorny issue of the Pledge of Allegiance hit a different social issue head-on. The Supreme Court ruled that the parent without full legal custody was without any legal standing. But if we want parents involved in their kids' lives, how can we remove them in the court?
This ruling was, in the words of three justices, "like the proverbial excursion ticket -- good for this day only." The pledge will rise again. In the meantime we may see an accidental impetus for a bitter series of custody battles over children. God -- if that's not against the Constitution -- help them.
© 2004 The Washington Post Company