Pledge case puts chill on parental rights

Although experts disagree on the case's reach, parents without custody could find it harder to press concerns.

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.

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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