Parental Rights and the Pledge
by Wendy McElroy, ifeminists.com
16 April 2004
In the pledge case the
U.S. Supreme Court will consider not only the separation of church and state
but also the legal standing of a noncustodial parent.
The case of Elk Grove Unified School District v. Newdow,
which challenges the constitutionality of the words "Under God" in the Pledge
of Allegiance, stirred a furor in late March when it was heard before the
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 case is part of the ongoing struggle within society over a non-custodial
parent's rights in the event of divorce or estrangement, particularly in
the cause of fathers' rights. More broadly stated, the question becomes,
"if a non-custodial parent has legal responsibilities, such as child support,
does he not have legal rights as well?"
The Supreme Court case revolves around Michael Newdow. He is the atheist
who brought a lawsuit against Congress, the president, the state of 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 in San Francisco 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.
However, according to an order issued by the California Superior Court, the
child's mother, Sandra Banning, had "sole legal custody as to the rights
and responsibilities to make decisions relating to the health, education
and welfare of [the child.] While Newdow had the right to "consult," Banning
had "legal control." Following the Ninth Circuit's ruling on Newdow's suit,
Banning, a devout Christian, filed a motion with the same court challenging
Newdow's standing--that is, his legal right--to bring the lawsuit.
(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 Dec. 4, 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 longer brought on his daughter's
behalf but on his own as a parent. In reviewing this case, therefore, the
U.S. 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 of June 29, 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. By dismissing the case on
"standing," the Supreme Court, without meaning to do so, could deal a severe
blow to the important and entirely separate issue of fathers' 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
Wendy McElroy is the editor of ifeminists.com
and a research fellow for The Independent Institute in Oakland, Calif. Her
new book is Liberty for Women: Freedom and Feminism in the 21st Century.
Reprinted with permission of ifeminists.com.
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