As you know, from various sources, the United States Supreme Court will hear arguments on the challenge to the pledge of allegience, specifically the words “under God.” The family law issue in all of this revolves around the concept of “legal custody” and its impact on the parent’s standing to raise the issue in the first instance.
The father and mother were never married. In the paternity proceedings, the mother was awarded sole custody. And the mother does not object to the “under God” language. Apparently, mother is a Christian and father is an atheist. It is difficult to understand how a father with no legal right to dictate his child’s education or religion can sue the school district, especially when the mother supports the school district.
The Justice Department argued (excerpt):
2. Newdow opposes certiorari on the standing question raised by the government’s petition (see Pet. i, 25-30), on the ground that he retains “interests and rights in directing [his daughter’s] education” (Br. in Opp. 8). The question of Newdow’s standing to vindicate alleged harm to a daughter over whom he exercises no legal custody, however, is a jurisdictional question that is necessarily antecedent to the Court’s consideration of the merits of the constitutional question. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998).
Amicus Americans United for Separation of Church and State separately argues that the standing question is so infused with questions of state-law as to warrant denial of the petition or certification of some unidentified state-law question to the California Supreme Court. Amicus Br. 7-9.3 There is no dispute, however, as to the scope of Newdow’s rights under state law. Newdow concedes that the child’s mother, not he, has “sole legal custody” of the daughter. Pet. App. 90a. Nor is there any dispute that the mother’s legal custody gives her final decisionmaking control over the “health, education and welfare” of the child. Id. at 90a-91a; Cal. Family Code § 3006 (West 1994) (“sole legal custody” means “that one parent shall have the right and the responsibility to make the decisions relating to the health, education, and welfare of a child”). State law is also clear that the mother alone can “direct [the daughter’s] activities and make decisions regarding [her] * * * religion.” Burge v. City & County of San Francisco, 262 P.2d 6, 12 (Cal. 1953). In light of Newdow’s legal inability to prevent the daughter’s exposure to religion if the mother decides to take her daughter to church or to enroll her in parochial school, it is unclear how Newdow can nevertheless claim a legally cognizable injury from the daughter’s exposure to the Pledge when the mother decides the daughter should attend a public school where it is recited. See generally Pet. 29-30.
While state law affords Newdow the right to “expose” his daughter to his atheistic views, Pet. App. 95a, it is a distinct question of federal law whether that limited state-law interest vests him with Article III standing to challenge an educational practice that the custodial mother supports. In amicus’s own words (Br. 10), it is the “Ninth Circuit’s understanding of the implications of pertinent California law” for Article III standing for which the government’s petition seeks this Court’s review. Likewise, Newdow’s assertion (Br. in Opp. 9) that he should be able to press this suit in federal court, rather than have “to go to the Superior Court to obtain permission” to challenge an educational practice endorsed by the custodial mother, raises precisely the Rooker-Feldman concerns identified in the government’s petition (Pet. 27). See also Liedel v. Juvenile Ct. of Madison County, 891 F.2d 1542, 1545-1546 (11th Cir. 1990) (the Rooker-Feldman doctrine bars a federal court’s exercise of jurisdiction over a case involving an ongoing child custody dispute, notwithstanding claimed violations of constitutional rights to due process and privacy).