The Newdow Decision: Why Did Newdow Lose?

Presented at the August 2004 services of The North Texas Church of Freethought

On June 14th of 2004 the US Supreme Court reversed the ruling of the Ninth Circuit Court of Appeals that the 1954 Congressional insertion of "under God" into the Pledge of Allegiance, our official oath of national loyalty, is a violation of the Establishment Clause and unconstitutional. But it didn't do so by explicitly ruling that "under God" does not violate the First Amendment. Rather, it did so on the grounds of "standing" or having the right to bring the legal action in the first place because Dr. Newdow is not the primary custodial parent of his daughter, who attends public school and is led to say the pledge. How can this be when all Newdow asserted was that he has a right to a relationship with his daughter without the government taking sides on a controversial theological issue?

The oral argument on the case was held on March 24th of this year and the media reported only snippets of what actually happened. But the court's decision to reverse on "prudential standing" was perhaps foreshadowed by Chief Justice Rehnquist's comments at the outset to the attorney for the school district:

" … on the standing issue, normally, I guess, we defer to the courts of appeals … wouldn't we, and move on to the merits. Is there some reason why we shouldn't do that here? … would it be open to us under our precedents to say that we think there's Article III standing, but this really involves rights of third parties, and as a prudential matter, we do not think it's appropriate to exercise jurisdiction —… I saw the Rooker-Feldman cite. I just wonder if you have any other authority for the fact that there's a prudential standing problem here and then you cite us a case other than Rooker v. Feldman, would be Craig and Boren or Rescue Army or something?"

Rehnquist is talking here about esoteric legal matters, even asking what kind of arcane doctrine or principle might be used to avoid reaching the merits of the case.

Rooker-Feldman, by the way, is a principle that lower federal courts are barred from conducting reviews "for errors in construing federal law or constitutional claims 'inextricably linked' with the state court judgment." But the US Supreme Court does have that right, indeed, the exclusive right to conduct such reviews.

Rescue Army was a case that established the principle that:

"The Supreme Court of the United States will decide constitutional issues only where strict necessity requires … [not] in friendly non-adversary proceedings; or in advance of the necessity of deciding them; or in broader terms than are required by the precise facts … or if the record presents some other … or at the instance of one who fails to show that he is injured … or who has availed himself of its benefits; or if a construction of the statute is fairly possible by which the question may be avoided."

In Craig v. Boren, Oklahoma set a higher legal drinking age for males than for females and the standing of one of the parties, a seller of beer, was questioned. In that case "the impact on third-party interests" was "deemed crucial" to the question of standing and the seller's standing to assert equal protection objections of young males was recognized because "if the vendor is not allowed to assert the rights of the third parties, the threatened imposition of governmental sanctions might deter vendors from selling 3.2% beer to young males, thereby ensuring that enforcement of the challenged restriction against the vendor would result indirectly in the violation of third parties' rights." In Newdow the "third party" would presumably be Dr. Newdow's daughter.

Also during the oral argument in March there was this from Justice Kennedy to Dr. Newdow:

" … you are asking the Court to exercise the extraordinary, the breathtaking power to declare Federal law unconstitutional, and … your daughter is — is the one that bears the blame for this. She's going to face the public outcry, the public outrage, and we take the case, I think, on the assumption that even at her tender years she probably doesn't agree with that and that her mother certainly doesn't. And it seems to me that your insisting on standing here contradicts that common sense … that … when a citizen wants the courts to exercise this awful power, that they take the consequences, and you're putting that on her."

Now keep these things in mind as we consider the Supreme Court's ruling on this case, which was issued this past Flag Day, 50 years to the day that President Eisenhower signed into law the 1954 Congressional codification of the slur that "an atheistis American is a contradiction in terms." The decision, written by Justice John Paul Stevens, said:

"The standing requirement is born partly of '"an idea … about the constitutional and prudential limits to the powers of an unelected, unrepresentative judiciary'" The command to guard jealously and exercise rarely our power to make constitutional pronouncements requires strictest adherence when matters of great national significance are at stake. … Always we must balance 'the heavy obligation to exercise jurisdiction,' against the 'deeply rooted' commitment 'not to pass on questions of constitutionality' unless adjudication of the constitutional issue is necessary. … [under Article III of the Constitution] The plaintiff must show that the conduct of which he complains has caused him to suffer an 'injury in fact' that a favorable judgment will redress. Although we have not exhaustively defined the prudential dimensions of the standing doctrine, we have explained that prudential standing encompasses … One of the principal areas in which this Court has customarily declined to intervene is the realm of domestic relations. Long ago we observed 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.' … We have also acknowledged that it might be appropriate for the federal courts to decline to hear a case involving 'elements of the domestic relationship,' even when divorce, alimony, or child custody is not strictly at issue: … in general it is appropriate for the federal courts to leave delicate issues of domestic relations to the state courts. … Newdow's rights … cannot be viewed in isolation. This case concerns not merely Newdow's interest in inculcating his child with his views on religion, but also the rights of the child.s mother as a parent generally and under the Superior Court orders specifically. And most important, it implicates the interests of a young child who finds herself at the center of a highly public debate … the interests of this parent and this child are not parallel and, indeed, are potentially in conflict. … Nothing that either Banning or the School Board has done, however, impairs Newdow's right to instruct his daughter in his religious views. … He wishes to forestall his daughter's exposure to religious ideas that her mother … endorses … 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. … In our view, it is improper for the federal courts to entertain a claim by a plaintiff whose standing to sue is founded on family law rights that are in dispute when prosecution of the lawsuit may have an adverse effect on the person who is the source of the plaintiff's claimed standing. When hard questions of domestic relations are sure to affect the outcome, 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. … We conclude that … Newdow lacks prudential standing to bring this suit in federal court."

So, why did Newdow lose? According to the reasoning of the Court he lost for two reasons. With respect to the first, Keith Alan, the Church of Freethought's attorney in filing our amicus brief in this case, put it this way:

"To paraphrase, I think what they said was, 'This is too weighty and important an issue for us to decide when we have a reasonably good basis not to decide the Constitutional issue. Indeed, we have a duty to scour the case for any conceivable basis to avoid deciding important Constitutional questions, and the more important the Constitutional question, the stronger is our duty not to decide it.' There is a germ of truth and wisdom to the general idea that the Court should not decide Constitutional questions if it does not have to, but the Court took that general idea to the absolute extreme (and a little beyond) in the Newdow case."

The second reason the Court gave in its decision was that it felt that it would be harmful for Newdow's daughter to be associated with litigation in which a damned atheist might put an end to a violation of the Religion Clauses of the First Amendment, a violation which just happens to be very popular with a majority of Christian Americans. That is, it acted to protect the innocent little girl who is even now continuing to be taught that the US is a country "under God" in which atheists must be considered suspect, if not actual traitors.

It will be most interesting to see what kind of woman she grows up to be. Will she become an adult who not only believes in God but who harbors the same kind of hatred of atheists that "under God" has helped to encourage for the last 50 years? Will she see her father not only as a traitor to what might otherwise have been his family as well as to his country? And in this we might also wonder with the fathers' rights groups that also filed an amicus whether "prudential standing" may come to be one more way that the courts of this land can stand by and allow the authorities to ride roughshod over people's rights in an age when many families are not intact or traditional.

Finally, it may be that the Supreme Court justices had other reasons for deciding as they did. Even for ordinary people, the way in which the disputed 2000 Presidential election was settled had to have suggested — if not proved — that the Supreme Court is sensitive to political concerns. It is not some ivory tower or infallible engine of dispassionate logic which never errs or is influenced by anything but facts and reason. Such an oracle would be the dream of any Freethinker, and perhaps this is one reason why so many unbelievers hold the Supreme Court in such high regard. Not that it shouldn't be so held.

But we should not be so foolish as to think that the Supreme Court is immune from political considerations. Indeed we know that it is not since the President, with the advice and consent of the Senate, can choose who sits on its bench and the Congress and States can, if they choose, override its rulings with laws and Constitutional Amendments. So could it be that one or more of the justices honestly thought that the "under God" question was "too controversial?" Might it have been worried that affirming the Ninth might galvanize our own Christian Taliban and even ensure that the next appointment to its chambers would be one or more judges in the mold of Clarence Thomas or Antonin Scalia, ready to tear the heart out of a century of Establishment and Religious Liberty Clause jurisprudence? It would be a wonder if none of this had occurred to them.

Dr. Newdow and others, meanwhile, plan to refile the same or similar cases, possibly in additional jurisdictions. So the issue could be right back in the lap of the Supreme Court under circumstances where it will be compelled to decide on the merits. Or lower courts could dismiss such suits or decide them wrongly under the "ceremonial deism" doctrine leaving the Supreme Court free to allow the injustice to stand by refusing appeals.

But if the issue does come again before the Supreme Court, it would be a good thing only if reason prevails and the offending insertion is struck down. For that to happen the tide of public opinion must first be turned, which cannot be accomplished by laws and litigation and courts and judges. In this we can hope that the publicity and public discussion of the matter over the last few years has been a start. It is now up to us and others — believers and unbelievers alike — to keep attention on the issue of "under God" and the way in which it needlessly divides "one nation" and thwarts an "indivisible" and determined commitment on the part of Americans to "liberty and justice for all."

© 2004 Dr. Tim Gorski