Father knows worst.

Father knows worst.

Father knows worst.

The law, lawyers, and the court.
June 14 2004 6:51 PM

Father Knows Worst

The high court wasn't chicken to duck the pledge case.

I pledge allegiance
I pledge allegiance

The early headlines announcing the Supreme Court's decision today in the Pledge of Allegiance case are heavy with the language of disappointment: The high court supposedly ducked and dodged the tricky issue, hiding from the political fallout of a tough religious question behind a convenient lawyer's trick of ruling on a "technicality." But this morning's decision is not about lawyers' tricks or hypertechnical hairsplitting. Even if you believe the words "under God" violate the Constitution, as I do —or at least violate the court's line of cases in this area, as does Clarence Thomas —it's reasonable to say that Elk Grove Unified School District v. Newdow just wasn't the right case to test that proposition.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

Too many other things were at stake. You can call them "technicalities." I like to call them "children."

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Ask a divorced or unmarried parent with primary custody of a child what was at stake in this case, and you'll get an answer that differs profoundly from the headlines: The lawyer's trick here came from Michael Newdow, who wanted to override the religious decisions made by his daughter's mother. (The two never married.) Allocating the duties and obligations of custodial and noncustodial parents has always been the province of state courts. It's a hideous job, and no one should have to do it. But the simple fact is that judges decide on a primary parent, and the other parent can either try to change that arrangement or learn to live with it. Initially, Newdow went for door No. 3. He tried to use a backdoor to force the issue first and only tried to modify the custody agreement later.

While the appeal over the constitutionality of the Pledge case was pending, Newdow was filing for joint legal custody of his daughter. It was granted. But long before he might have been permitted  to override decisions made by the mother, Sandra Banning, Newdow was standing up and claiming in federal court that he had some kind of free-floating constitutional right to override the primary parent's religious views.

The 9th Circuit Court of Appeals got a little mixed up on this point. It decided the Pledge was unconstitutional in June 2002. Based on a subsequent motion by Sandra Banning—reminding the court that she had "exclusive legal custody"—the court revisited the issue of whether Newdow had standing to file suit in the first place only later, in December 2002. Citing two California cases establishing that noncustodial parents cannot be completely carved out of their children's religious upbringing, the three-judge 9th Circuit panel weirdly concluded that noncustodial parents have some kind of affirmative right to run roughshod over the other parents' choices. It doesn't follow that being permitted to "influence," "expose," or "educate" your children (as the law in California provides) in your preferred religious tradition means the custodial parents' views simply don't matter. No family court would ever say such a thing, and it was, quite simply, bizarre for the 9th Circuit to assert it.

Sandra Banning came to the 9th Circuit Court of Appeals with a custody order in hand. The date on it was Feb. 6, 2002, and it expressly provided that she had "sole legal custody as to the rights and responsibilities to make decisions relating to the health, education and welfare of" their daughter, that the two parents should "consult with one another on substantial decisions" but that Banning, not Newdow, had the right to "exercise legal control" if the parents could not reach agreement. Banning, in other words, had a judicially enforceable trump as their child's primary custodian. And before you insist that giving one parent a veto is unfair or unsound, let me remind you that the other option is Solomon's. It involves a rather large saw.

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Writing for five justices today, Justice John Paul Stevens quotes a case from 1890 to remind us that it's not ducking, dodging, or chicken to insist that "[t]he whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States." He goes on to differentiate between the right conferred by California state law—to influence a noncustodial child's religious life—and the odd new right created by the 9th Circuit—to create an exclusive religious bubble around your noncustodial child's life. "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."

In his concurring opinion, Chief Justice William H. Rehnquist disagrees with the majority, finding that Newdow has the unfettered right to expose his daughter to his religious views. Of course he does. But Newdow cannot make ultimate decisions on yes/no matters, such as whether she can recite the pledge. For Banning's veto to mean anything, it must mean that she makes those calls.

There is certainly an important argument to be made about the impoverished rights granted by courts to noncustodial parents, many of whom are fathers who pay significant child support in exchange for the fundamental right to be vetoed at will. That's a thorny and important problem, but it's a problem to be solved in state courts, by judges who must try to split children in two without breaking skin. It's not a question to be decided by the Supreme Court and certainly not an issue to be decided in a sidebar on a case about the First Amendment.

The court's decision this morning does not reflect judicial gutlessness. It would have been more gutless to throw millions of custody arrangements into question, turning what were once considered final divorce decrees across the country into open-ended suggestions. Safeguarding the idea that custody decrees are final may not be a sexy constitutional issue. But I'd wager that it'll be better for the health and sanity of more American children than cajoling them into saying good morning to God every day.