Court Ruling is Flawed

More and more people are starting to realize that the means by which the Supreme Court avoided having to rule on the constitutionality of the phrase “under God” in the Pledge of Allegiance was not just wrong, but in fact wrongly decided. By denying Michael Newdow standing, they managed to seriously undermine already-acknowledged rights of non-custodial parents across the nation.

Erwin Chemerinsky writes for The Sun News:

The flaw in this reasoning is that it wrongly assumes that only parents with legal custody of their children have an interest in their children's education and religious upbringing. Newdow has been enormously involved in his daughter's schooling. His daughter spends a significant amount of time each week with him. The fact that the girl's mother has legal custody should not keep Newdow from being able to object to his daughter's being exposed to what he sees as religious indoctrination in violation of the First Amendment.

The Supreme Court purported to base its decision on California law concerning the rights of noncustodial parents. But no California case ever has held that a father lacked the authority to sue on behalf of his child. Indeed, California law is clear that both parents, custodial and noncustodial, have an equal say in the religious upbringing of their child.

Although this was a constitutional decision, I don’t think that other courts will be prevented from citing this in their decisions. I’m sure that family law attorneys will try to cite it when a custodial parent wishes to stick it to a non-custodial parent. The Supreme Court has stepped right into the middle of innumerable, nasty court cases pitting one parent against another and they’ve managed to make things worse. Why? Because they didn’t want to step into the constitutional battle over the Pledge of Allegiance.

The problem is, that constitutional battle is where they belong and what they exist for — family disputes isn’t their territory. They’ve done no one any favors. Even supporters of the current Pledge generally realize that the Court used this as an excuse the duck the real issue, which means that the Court has lost significant credibility as well.

I’d like to ask them: was it worth it?

Read More:

• Secularism 101
• Separation of Church and State 101
• Religion in Public Schools