Pledge case puts chill on parental rights

In avoiding the merits of the Pledge of Allegiance case, the US Supreme Court has dealt a substantial blow to the rights of noncustodial parents to use the federal courts to protect their children from alleged unconstitutional harms.

The court's 5-to-3 ruling on Monday has been largely portrayed as a dodge by the majority justices to avoid the difficult constitutional issue of whether the words "under God" in the Pledge violate the separation of church and state. But to many parents - primarily fathers - who do not share custody, the five-justice majority has just given lower-court judges the power to throw noncustodial parents out of court - even when their complaints involve possible constitutional violations against their children by the government.

California atheist Michael Newdow says the Supreme Court decision reversing his case violates his fundamental constitutional right to protect his child from unconstitutional government conduct.

Legal experts disagree on the potential implications of the high court's decision. Some say it remains to be seen whether the unusual circumstances of Mr. Newdow's case will translate broadly to other cases. Others see it as yet another setback to a struggling fathers' rights movement fighting what it views as gender discrimination by certain family-court judges who automatically favor mothers over fathers in all but the most extreme cases.

"The impact is huge," says Michael McCormick of the American Coalition for Fathers and Children. "There are 14 million noncustodial parents in this country who, if this decision is interpreted broadly, have lost the capacity to act on behalf of their children."

In his majority opinion, Justice John Paul Stevens says that Newdow lacks the legal authority to file his lawsuit on behalf of his elementary school-aged daughter. That's because a California family court had earlier ruled that the girl's mother retained complete authority to make key child-rearing decisions and act in the daughter's legal interest without interference by Newdow. But what Justice Stevens does not address in his 15-page opinion is whether Newdow possesses a fundamental parental right of his own to protect his daughter from unconstitutional government action. The majority opinion in Newdow's case suggests he does not.

In a concurring opinion that is actually a dissent on this point, Chief Justice William Rehnquist says that the five-justice majority has established a new doctrine requiring the high court to stay out of cases involving domestic disputes "no matter how constitutionally offensive" the result may be. "The California court did not reject Newdow's right as distinct from his daughter's, and we should not either," Chief Justice Rehnquist writes.

In the hands of creative and aggressive divorce lawyers, the high court's new doctrine may provide a powerful weapon bolstering the position of whichever parent is awarded custody, legal analysts say.

Page: 1 | 2