Supreme Court Dodges a Bullet

The Supreme Court has ruled that Michael Newdow doesn't have standing to challenge the inclusion of the words "under God" in the pledge of allegiance that his daughter has to say every day, because he's not the custodial parent.

Wise move on the Court's part, and probably one that leaves all the power interests breathing a sigh of relief. The Court once again shows its agility in avoiding a decision that could create controversy over a fundamental social issue. Bush, Kerry and Congress don't have to deal with the fallout of a ruling on the merits, which either way it went, presented a nightmare scenario for everyone. Atheists and civil libertarians and those on the other (wrong) side all know this issue is still live and they can get back in front of the Court someday - just not an election year.

Comments

[rod]

Okay, I have yet to read the actual opinion, so I'm just shooting from the lip here.

But -- by holding that a non-custodial father lacks standing to bring such a question before the Court, the Supremes have in fact (I think) "create[d] controversy over a fundamental social issue." They have avoided the Constitutional question -- and so, I guess, demonstrated "judicial restraint" -- but in doing so, it seems, opened an even bigger can of worms.

If my wife and I were to divorce, who would have standing to raise significant church/state questions on behalf of my son? Would it come down to custody? If so, things get weird in a hurry -- my state (Washington) has jettisoned the traditional concept of "custody" in favor of a scheme based on the notion that, while one parent necessarily spends more time with the child/children than the other parent, "custody" is still a joint exercise.

Avoiding Constitutional issues is a nice goal, but where matters of federalism arise (as they must in any family law question), Constitutionalism becomes unavoidable. It seems to me that the Court merely avoided one difficult issue (Establishment Clause) by arousing an even more difficult issue (federalism and family relations). I'm not sure the bullet has actually been dodged.

[Cadwallader]

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