Domestic Diversions

Exercising legal control

The United States Supreme Court issued its decision in the Pledge of Allegiance case, Elk Grove Unified School District v. Newdow, (Case No. 02-1624; June 14, 2004). The Court avoided the “under God” issue by concluding that the father lacked standing to assert any claim. Since the California paternity court had not awarded him decision-making responsibility, the father lacked the power to veto the decision of the mother, who was awarded “what we understand amounts to a tiebreaking vote.”

Justice Stevens writes (excerpt):
As explained briefly above, the extent of the standing problem raised by the domestic relations issues in this case was not apparent until August 5, 2002, when Banning filed her motion for leave to intervene or dismiss the complaint following the Court of Appeals’ initial decision. At that time, the child’s custody was governed by a February 6, 2002, order of the California Superior Court. That order provided that Banning had “ ‘sole legal custody as to the rights and responsibilities to make decisions relating to the health, education and welfare of’ ” her daughter. Newdow II, 313 F.3d, at 502. The order stated that the two parents should “ ‘consult with one another on substantial decisions relating to’ ” the child’s “ ‘psychological and educational needs,’ ” but it authorized Banning to “ ‘exercise legal control’ ” if the parents could not reach “ ‘mutual agreement.’ ” Ibid.

That family court order was the controlling document at the time of the Court of Appeals’ standing decision. After the Court of Appeals ruled, however, the Superior Court held another conference regarding the child’s custody. At a hearing on September 11, 2003, the Superior Court announced that the parents have “joint legal custody,” but that Banning “makes the final decisions if the two … disagree.” App. 127—128.
Nothing that either Banning or the School Board has done, however, impairs Newdow’s right to instruct his daughter in his religious views. Instead, Newdow requests relief that is more ambitious than that sought in Mentry and Murga. He wishes to forestall his daughter’s exposure to religious ideas that her mother, who wields a form of veto power, endorses, and to use his parental status to challenge the influences to which his daughter may be exposed in school when he and Banning disagree. 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. Mentry and Murga are concerned with protecting “ ‘the fragile, complex interpersonal bonds between child and parent,’ ” 142 Cal. App. 3d, at 267, 190 Cal. Rptr., at 848, and with permitting divorced parents to expose their children to the “ ‘diversity of religious experiences [that] is itself a sound stimulant for a child,’ ” id., at 265, 190 Cal. Rptr., at 847 (citation omitted). The cases speak not at all to the problem of a parent seeking to reach outside the private parent-child sphere to restrain the acts of a third party. A next friend surely could exercise such a right, but the Superior Court’s order has deprived Newdow of that status.

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. There is a vast difference between Newdow’s right to communicate with his child–which both California law and the First Amendment recognize–and his claimed right to shield his daughter from influences to which she is exposed in school despite the terms of the custody order. We conclude that, having been deprived under California law of the right to sue as next friend, Newdow lacks prudential standing to bring this suit in federal court.

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