In discussing the issue of how the US Supreme Court may dismiss one or both of the same-sex marriage cases that it heard last week because of the lack of standing of the parties to sue even though the lower courts had granted them that right, I was reminded of an earlier case that had similar issues and decided to look into what had happened subsequently, to see if the issue had been resolved.
The case involved Michael Newdow who in 2000 sued his local school district on behalf of his daughter, saying that the Pledge of Allegiance in school with the phrase ‘under God’ violated the Establishment Clause. A US magistrate ruled against him and said that the pledge was constitutional, a decision that was affirmed by the US District Court. Newdow appealed and a three-judge panel of the US Court of Appeals reversed the District Court ruling and gave the verdict to Newdow. The Appeals Court looked specifically at the issue of standing because Newdow was divorced and the issue of whether he had legal custody in order to bring the case on behalf of his daughter had been raised. They ruled unanimously that he had standing.
The case was then appealed to the US Supreme Court. In 2004, they rejected Newdow’s claims because they ruled that he did not have standing to bring the suit since the child’s legal custodian was the girl’s mother. As a result, the District Court verdict was upheld. The majority opinion did not rule on the merits of the case, though three dissenters said that they felt that the ‘under God’ phrase was constitutional.
It was suspected in some quarters that the majority of the US Supreme Court used the standing issue to punt on this case, that they may have felt that the ‘under God’ was in fact unconstitutional but not worth creating a fuss over.
Newdow brought a new case, this time on behalf of parents of children where the issue of standing was not in dispute, but in 2010 a US Court of Appeals ruled 2-1 against him, saying that since no federal law required students to recite the Pledge, there was no violation.
Since other Appeals Courts had ruled similarly, even Newdow feels that in the absence of a divergence of rulings, it is highly unlikely that the US Supreme Court will hear an appeal, so the issue seems to be settled. So ‘under God’ will stay.