Pledge case puts chill on parental rights

Others disagree. "I don't think it is going to have any widespread impact on parents' rights," says Richard Barry, a San Rafael, Calif., divorce lawyer and president of the American Academy of Matrimonial Lawyers.

Mr. Barry says California law reflects a strong policy preference for coparenting - keeping both parents involved in their children's lives. But sometimes, he says, family courts assign sole responsibility to one parent to make key decisions. That happens only when the other parent is so difficult that the court is left with no alternative, he says.

"Somewhere along the line I can only assume that Mr. Newdow blew it and got himself into the situation of one of those parents who demonstrates an inability to coparent," Barry says.

Other analysts say the high court's action in the Newdow case is significant because it highlights a preference by the court to avoid becoming too deeply involved in the complexities of family law disputes. It also highlights a growing sensitivity to the rights of children, particularly when a child's rights are viewed as being in conflict with a parent's.

In Newdow's case, his campaign to edit "under God" out of the Pledge threatened to thrust his daughter into the national spotlight as the girl at the center of a constitutional storm. Yet she and her mother do not object to the Pledge. "The court is saying, given the conflict between the mother and the emphasis on the interests of the daughter, we are unwilling to participate in the vindication even of [Newdow's] constitutional right if to do that it might harm the child," says Herma Hill Kay, a family law scholar at the University of California, Berkeley, School of Law.

This sensitivity to the rights of the child when in conflict with parental rights has been a consistent concern of Stevens and was highlighted in his dissent in a 2000 case involving grandparent visitation rights.

Some scholars see clear parallels. "In both cases the Supreme Court is expressing its growing appreciation of the complexity of family disputes, and in both cases the court is seeking to back its way out the door," says David Meyer, an expert in the intersection of constitutional law and family law at the University of Illinois College of Law in Champaign. He says the court is trying to avoid establishing bright-line federal or constitutional rules that might undermine fact-intensive, case-by-case determinations in family courts.

But Professor Meyer also says the high court's grandparent visitation decision has resulted in conflicting decisions across the country, and the same result may follow from the Newdow decision. "It will now fall to the innumerable state and family courts throughout the country to wrestle with this," he says, "and for state supreme courts to sort it out state by state."

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