High Court Ducks Hot Potato Case

Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

So when the justices were given the opportunity to knock Michael Newdow out of the water on a technicality — that he lacked standing to sue on behalf of his daughter — they embraced it as a tidy way to get this decidedly untidy case off their docket. And on Flag Day, no less. In the end, the justices declared that the federal courts should not and would not ride to Newdow's rescue at the expense of either his daughter or his ex-wife, who has custody of the young woman at the heart of this fight.

They did not tell the rest of us, formally anyway, what they think of the serious substantive challenge Newdow had made to the constitutionality of the pledge. Three justices, including Chief Justice William Rehnquist, noted that they would have upheld the pledge as is, with the words "under God" in it, had they been required to do so. But the other justices were silent as to whether the inclusion of those two words — added in the 1950s as a Cold War effort to distinguish our country from the godless Soviet Union — amounted to an improper endorsement of religion by the State. Those views, whatever they may be, may never now see the light of day.

For the Court, the case turned on the changing dynamic between the Newdow family. When Michael Newdow first raised the challenge, the lower courts recognized his standing to bring the challenge on behalf of his daughter. But after that initial ruling the girl's mother, Sandra Banning, informed the court that she, not Newdow, had "exclusive legal custody" of the child and that the child herself had no objection to either reciting or hearing the pledge with the words "under God" in it. This conflict ultimately doomed Newdow's challenge because the Court was unwilling to side with him over his ex-wife given the realities of their custody situation.

The Court first explained how limited federal jurisdiction can be when a case involves a dispute involving domestic relations. Such disputes traditionally are within the jurisdiction of state law courts, wrote Justice John Paul Stevens, except for "rare instances" in which "it is necessary to answer a substantial federal question that transcends or exists apart from the family law issue..." We don't want to act like a family court, the justices said, even when the family is fighting over something as nationally significant as the Pledge of Allegiance.

The justices then critically distinguished Newdow's right "to instruct his daughter in his religious views" even as a non-custodial parent from his "wishes to forestall his daughter's exposure to religious ideas that her mother, who wields a form of veto power, endorses, and to use his parental status to challenge the influences to which his daughter may be exposed in school when he and Banning disagree." Nothing precluded Newdow from the former right but nothing in federal law required the court to recognize the latter right. "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," Stevens wrote.

"There is a vast difference between Newdow's right to communicate with his child — which both California law and the First Amendment recognize — and his claimed right to shield his daughter from influences to which she is exposed in school despite the terms of the custody order," Stevens wrote. "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." In other words, the Court was greatly persuaded by Banning's claims that her daughter didn't necessarily agree with or want her father fighting to amend the pledge.

So the pledge fights ends with a procedural whimper and not the substantive bang all the loudmouth talk show hosts were hoping for. And there is no guarantee that it will emerge anytime soon. It's conceivable that some parent with unassailable standing could bring a future challenge against the pledge — in fact, I would bet on that happening. But a lower court would again have to accept the argument that the words "under God" make the pledge constitutionally suspect. And I'm not sure that even the 9th U.S. Circuit Court of Appeals is going to walk down that lane again anytime soon. And even if it did, there is no guarantee that the justices, whoever they are at that point, wouldn't be able again to scoot away from this case without either shoring up or tearing down the pledge.

The decision offers no clarity for either side. It doesn't make the pledge materially more or less suspect to challenge in the future. All it does is ensure that the pledge, in its present form, may continue to be recited, voluntarily, in our nation's classrooms and otherwise. And all it says about the Court is that the justices aren't always willing to interject themselves into the political and cultural wars that surround them. It only seems that way.

By Andrew Cohen