OP-ED CONTRIBUTOR
Pledging Allegiance to My Daughter
By MICHAEL NEWDOW, NY TIMES, June 21, 2004

SACRAMENTO, Calif. - Last week the Supreme Court ruled in effect that once parents are involved in family court proceedings, their federal rights are at risk. This decision sets a dangerous precedent that violates the rights of citizens to have the federal judiciary address their claims.

The case, which I brought, presented the court with an important question: is a classroom recital of the Pledge of Allegiance unconstitutional? The pledge - with its claim that ours is "one nation, under God" - is recited daily in the public school attended by my daughter. Because I am an atheist, she is, in essence, told every school morning that her father's religious views are wrong.

This is an injury to me personally, which should give me "standing": the right to have the court adjudicate my claim. Nonetheless, the merits of the case were never addressed. Instead, the court ruled that since I do not have legal custody of my daughter, I do not have the right to pursue the matter in the federal courts.

As Chief Justice William Rehnquist noted in his concurring opinion, the majority did not dispute that I had standing under Article III of the Constitution, which requires a personalized injury before a person can litigate. The court did, however, cite a "prudential" reason for denying me the right to bring this lawsuit, saying that the federal judiciary should "leave delicate issues of domestic relations to the state courts."

Although that's certainly a reasonable policy, there's a problem with applying it in this case: nothing I requested was a family law matter.

I began my effort to remove "under God" from the pledge in 1998, when my child's mother, Sandra Banning, and I were good friends. This was more than a year before we first went to family court. In fact, it wasn't until July 2002 - after my victory in the United States Court of Appeals for the Ninth Circuit - that the issue of my daughter's legal custody entered into the pledge case. In bringing the case, my goal was simply to uphold the separation of church and state, especially in my daughter's public school, that is required by the Constitution.

Any decision on the merits would have been unrelated to - and would have had no effect on - the family law judge's orders. Nor would it would have infringed upon the rights of either Ms. Banning or our child. The "prudential" considerations, therefore, seem questionable at best.

The court strained to limit standing in this case, saying that "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." But my standing was not founded on disputed rights under family law; my daughter is told her father is wrong no matter what the custody arrangement.

Similarly, any "adverse effect" on my daughter would have been due to private biases, not as a result of any custody arrangement. As the Supreme Court has previously stated (in a case the majority cited, no less): "Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect." Changing the federal judiciary's standing rules in response to private biases is certainly giving them effect.

What's to limit this policy in the future? If a school district reverts to racially segregated classrooms, does a divorced black mother have no standing because the father prefers that policy? If - in direct violation of Supreme Court precedent - a public school district starts teaching the biblical account of Creation, is a scientist prohibited from challenging that practice because the other parent is a fundamentalist Christian?

And what if a mother agrees with her daughter's teacher that it's proper to start off every school day by having the class stand up and say that it's fine to treat atheists (like the girl's father) as second-class citizens? Wait a minute: that's precisely the case that, after tens of thousands of hours invested over six years, the Supreme Court simply dismissed last week.

Our Constitution is the rule book that is supposed to guarantee to every citizen that each branch of government will do its duty and uphold his or her rights. In this case, Congress broke the rule that says government may not take a position on questions of religious belief. Then the state court system broke the rule that says that fit parents have a fundamental constitutional right to love and protect their children (as might be appreciated by the fact that no reasonable justification for my loss of legal custody has ever been presented). And now - in the highest court in the land - the federal courts have broken the rule that says they will adjudicate any claim of injury that is properly brought before them.

God bless America.


Michael Newdow was the plaintiff in Elk Grove Unified School District v. Newdow.