Quote:
Originally posted by DunbarFC
A question for our attorneys -
Does it matter that the girl named in the lawsuit is against what her father is doing and that the girls mother is also against him using their daughter in this manner ?
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Yes. The legal term is standing. It is actually the first question before the Supreme Court:
"1. Whether respondent has standing to challenge as unconstitutional a public school district policy that requires teachers to lead willing students in reciting the Pledge of Allegiance."
The standard requires the plaintiff to prove that "(1) it has suffered an 'injury in fact' that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision."
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000) (citing
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992)). Parents generally are allowed to assert standing on behalf of their children: "Parents have a right to direct the religious upbringing of their children and, on that basis, have standing to protect their right."
Doe v. Madison Sch. Dist. No. 321, 177 F.3d 789, 795 (9th Cir. 1999) (
en banc).
The Ninth Circuit held that Newdow had standing to sue one of the school districts because his daughter was a student in the school district. The court also held that "Newdow has standing in his own right to challenge the facial constitutionality of the 1954 Act amending the Pledge because 'the mere enactment of a statute may constitute an Establishment Clause violation,' and the 1954 Act amounts to a 'religious recitation policy that interferes with Newdow's right to direct the religious education of his daughter'" (quoting the petition for writ of certiorari).
After that first appeals court ruling, the mother stepped in. Another hearing was held, and the court held that he still had standing. He couldn't sue on his daughter's behalf, but he could still sue on his own behalf. Even though he didn't have custody, he still had some parental rights. Also, the court held that the mother's opposition didn't matter if the law itself was unconstitutional, saying the mother "has no power, even as sole legal custodian, to insist that her child be subjected to unconstitutional state action."
The petition of the United States asserts numerous errors in this analysis, but they are rather detailed. Suffice to say, the issue is whether his more limited rights as a non-custodial parent were injured by the state action and whether the lower court conflated a standing question with a question on the merits ( "The requirement of standing 'focuses on the party seeking to get his complaint before a federal court and not on the issues he wishes to have adjudicated."
Valley Forge Christian Coll. v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 484 (1982)).
As a rule, the Supreme Court prefers to decide cases in the way which best leaves existing law settled. They will not decide a constitutional question if the dispute can be settled on statutory, procedural or other grounds. If the Court finds that Newdow lacked standing, they may overturn the Ninth Circuit on that and never even address the constitutionality of the pledge itself.