# Justice Scalia and the Pledge of Allegiance case

**URL:** <https://boards.straightdope.com/t/justice-scalia-and-the-pledge-of-allegiance-case/215412>\
**Category:** Great Debates\
**Created:** [November 26, 2003, 4:33pm UTC](https://boards.straightdope.com/t/justice-scalia-and-the-pledge-of-allegiance-case/215412 "2003-11-26T16:33:23Z")\
**Posts on this page:** 20\
**Page:** 4

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**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\
**Post date:** [December 4, 2003, 3:53pm UTC](https://boards.straightdope.com/t/justice-scalia-and-the-pledge-of-allegiance-case/215412/61 "2003-12-04T15:53:34Z")

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There is no such rule. It is simply a courtesty to your fellow posters to acknowledge it as your own work. If I had understood that I was addressing the author of that essay, you and I might have gotten off on a better foot. You’d still be completely wrong, of course, but at least I wouldn’t have given you the excuse to play victim.

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**Author:** ![Musicat](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/musicat/32/20189_2.png) [@Musicat](https://boards.straightdope.com/u/Musicat)\
**Post date:** [December 4, 2003, 4:17pm UTC](https://boards.straightdope.com/t/justice-scalia-and-the-pledge-of-allegiance-case/215412/62 "2003-12-04T16:17:31Z")

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> [@](#):
>
> \*Originally posted by Ramanujan \*  
> i think that most americans are just shocked and appalled that someone would want to change the pledge to remove god from it.

As much as some were shocked when it was inserted in 1953?

> [@](#):
>
> it seems like mostly atheists that believe the government should be as secular as possible…

The original Constitution framers were mostly deists, yet they understood from history what can happen if goverment & religion mixed.

**LyricalReckoner,** I concur with **Minty.** I see nothing wrong with linking to self-generated data, and I think you redeemed yourself thoroughly by admitting the source when asked. But it is always nice to lay your cards on the table up front to avoid accusations of impropriety.

I hope you will agree that links closely associated with the poster do not carry as much weight as independent corroboration does if you are trying to prove a point.

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**Author:** ![LyricalReckoner](https://avatars.discourse-cdn.com/v4/letter/l/df788c/32.png) [@LyricalReckoner](https://boards.straightdope.com/u/LyricalReckoner)\
**Post date:** [December 4, 2003, 9:30pm UTC](https://boards.straightdope.com/t/justice-scalia-and-the-pledge-of-allegiance-case/215412/63 "2003-12-04T21:30:19Z")

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> [@](#):
>
> \*Originally posted by minty green \*  
> \*\*There is no such rule. It is simply a courtesty to your fellow posters to acknowledge it as your own work. If I had understood that I was addressing the author of that essay, you and I might have gotten off on a better foot. You’d still be completely wrong, of course, but at least I wouldn’t have given you the excuse to play victim. \*\*

By wrong, do you mean it’s impossible for Justice Scalia to vote in this case, to offer a concurring or dissenting opinion? Is that what you mean?

Or by wrong, do you mean that Newdow’s standing is assured? Or that if the Supremes say Newdow has standing, it means nothing for the rights of non-custodial parents in California?

Or by wrong, do you mean that the court certainly will decide whether the regular morning classroom salute is constitutional?

Or, do you simply mean this? _whoever doesn’t see things the way I do is either ignorant or stupid._

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**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\
**Post date:** [December 5, 2003, 12:38am UTC](https://boards.straightdope.com/t/justice-scalia-and-the-pledge-of-allegiance-case/215412/64 "2003-12-05T00:38:01Z")

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> [@](#):
>
> \*Originally posted by LyricalReckoner \*  
> \*\*By wrong, do you mean it’s impossible for Justice Scalia to vote in this case, to offer a concurring or dissenting opinion? Is that what you mean?
> 
> Or by wrong, do you mean that Newdow’s standing is assured? Or that if the Supremes say Newdow has standing, it means nothing for the rights of non-custodial parents in California?
> 
> Or by wrong, do you mean that the court certainly will decide whether the regular morning classroom salute is constitutional?
> 
> Or, do you simply mean this? _whoever doesn’t see things the way I do is either ignorant or stupid._ \*\*

I will of course let **minty** sa what he meant by “wrong.”

But if I may commnent, I understood you to be saying that the California state court system’s holding as to what degree of influence Mr. Newdow might have over his non-custodial child would be the criterion by which SCOTUS would decide standing.

I feel this is wrong. While it provides valuable guidance as to what degree he can practically hold a position of making or influencing decisions about the child’s upbringing, the key point in bringing such a case in Federal courts is whether or not a right he claims under the Constitution or national statue law has been infringed upon. It is a commonplace of case law that a parent whose parental rights have not been completely terminated with the parent’s consent has a right to object to improper treatment of the child – the courts deciding whether the objection has merit, but the right to raise the objection is quite real.

Whether Newdow’s status as a non-custodial parent gives him adequate rights with regard to the child to bring the suit in question is the actual standing issue here. And I do not believe that it is cut and dried. Remember that while the focus of this case has been on the constitutionality of “under God,” it will also set binding precedent for the exercise of parental rights in broken families – and I’d venture to guess that there are thousands of cases annually dealing with just that question.

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**Author:** ![LyricalReckoner](https://avatars.discourse-cdn.com/v4/letter/l/df788c/32.png) [@LyricalReckoner](https://boards.straightdope.com/u/LyricalReckoner)\
**Post date:** [December 5, 2003, 1:15am UTC](https://boards.straightdope.com/t/justice-scalia-and-the-pledge-of-allegiance-case/215412/65 "2003-12-05T01:15:37Z")

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> [@](#):
>
> \*Originally posted by Polycarp \*
> 
> \*\*  
> But if I may commnent, I understood you to be saying that the California state court system’s holding as to what degree of influence Mr. Newdow might have over his non-custodial child would be the criterion by which SCOTUS would decide standing.\*\*

My point is that the California court’s haven’t even addressed the issue. The court of appeals simply decided that “parents have a right to direct the religious upbringing of their children,” even non-custodial parents like Newdow. And their basis for the conclusion? An earlier decision by the same court.

So far as I know, the Supreme Court has never considered this question.

> [@](#):
>
> \*\*  
> I feel this is wrong. While it provides valuable guidance as to what degree he can practically hold a position of making or influencing decisions about the child’s upbringing, the key point in bringing such a case in Federal courts is whether or not a right he claims under the Constitution or national statue law has been infringed upon. \*\*

You need to standing to make your case to begin with. The court of appeals decided that Newdow did have standing (after it ruled the Pledge unconstitutional in its initial ruling; prior to that, it \* assumed \* Newdow had custody of the girl.) It’s a question as to whether the Supremes will go along with that. My hunch is that they’ll kick it back, rather than decide California law on their own.

> [@](#):
>
> \*\*Whether Newdow’s status as a non-custodial parent gives him adequate rights with regard to the child to bring the suit in question is the actual standing issue here. And I do not believe that it is cut and dried. Remember that while the focus of this case has been on the constitutionality of “under God,” it will also set binding precedent for the exercise of parental rights in broken families – and I’d venture to guess that there are thousands of cases annually dealing with just that question. \*\*

I fully agree. Should the Supremes decide that Newdow has some constitutional basis for standing . . . well . . . what does that mean for all those squabbling families?

Of course, the Supremes could decide that Newdow has some other claim to standing. He offered several along the way, and they could chose any one of them. But I think they’d rather not. I think they’d rather see California grapple with this first. That’s my guess. They could decide that Newdow never had standing and so the court of appeals should never have bothered hearing his case.

In doing that, they could ignore (if they wish) the issue of the constitutionality of the regular morning salute in public schools.

When they granted cert in this case, they limited the grant to two questions: Newdow’s standing, and whether schools can require the Pledge. But they didn’t say they would consider both questions. They could consider one and not the other.

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**Author:** ![LyricalReckoner](https://avatars.discourse-cdn.com/v4/letter/l/df788c/32.png) [@LyricalReckoner](https://boards.straightdope.com/u/LyricalReckoner)\
**Post date:** [December 5, 2003, 1:49am UTC](https://boards.straightdope.com/t/justice-scalia-and-the-pledge-of-allegiance-case/215412/66 "2003-12-05T01:49:21Z")

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> [@](#):
>
> \*Originally posted by LyricalReckoner \*  
> \*\*When they [the Supremes] granted cert in this case, they limited the grant to two questions: Newdow’s standing, and whether schools can require the Pledge. But they didn’t say they would consider both questions. They could consider one and not the other. \*\*

Here it is again, from the case docket:

- 

Petition GRANTED limited to the following Questions:

\*\*1. \*\*Whether respondent has standing to challenge as unconstitutional a public school district policy that requires teachers to lead willing students in reciting the Pledge of Allegiance.

\*\*2. \*\*Whether a public school district policy that requires teachers to lead willing students in reciting the Pledge of Allegiance, which includes the words “under God,” violates the Establishment Clause of the First Amendment, as applicable through the Fourteenth Amendment.

The Solicitor General is invited to file a brief in this case on behalf of the United States. Justice Scalia took no part in the consideration or decision of these motions and this petition.  
\*

Seems to me, if they wanted to, they could say, “look, we don’t think Newdow had any standing to begin with, nor does he now have standing in this matter, but – since we’re all gathered here and there’s so much interest in what we might do – let’s go ahead and decide if the Pledge is OK.”

They could do that. Who’s gonna stop them? But I think that outcome is way remote. Imagine if they did. It would set a fantastic precedent – SCOTUS will hear a case and rule on it even if the plaintiff has no standing in the matter! That would sure sell some newspapers.

My guess is this: they’ll say the standing issue needs to be resolved, and that that should be done elsewhere.

Maybe not. Maybe they’ll say Newdow had (or has) standing. Maybe they’ll decide to look at the appeals court’s ruling. And then maybe they’ll decide that Newdow was right: adding _under God_ to the Pledge violated the Establishment Clause.

It certainly could go that way. And despite all the media hoopla about this case, despite all the recent excitement over Ten Commandments monuments, despite all the talk of Congress pulling Establishment Clause issues from the court, or about constitutional amendments to preserve the Pledge . . . despite all the hoopla, I think we’ll manage to live with that ruling and abide by it.

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**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\
**Post date:** [December 5, 2003, 2:41am UTC](https://boards.straightdope.com/t/justice-scalia-and-the-pledge-of-allegiance-case/215412/67 "2003-12-05T02:41:55Z")

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> [@](#):
>
> \*Originally posted by LyricalReckoner \*  
> By wrong, do you mean it’s impossible for Justice Scalia to vote in this case, to offer a concurring or dissenting opinion? Is that what you mean?

Of course not. But that’s not what you claimed, is it? In point of fact, you claimed that we should “look for Justice Scalia to become fully involved in this case, whatever [the AP] says.”

Is it _impossible_ for Justice Scalia to participate in the case? No. No federal law prevents him from doing so.

Is it _likely_ that Justice Scalia will participate in the case? No. In fact, it is not even reasonable to suggest that he has any likelihood whatsoever of participating in the case, given that the Court has already announced that “Justice Scalia took no part in the consideration or decision of these motions and this petition.”

> [@](#):
>
> Or by wrong, do you mean that Newdow’s standing is assured?

Of course not. But once again, that’s not what you claimed.

_Hint: Moving targets do nothing for your credibility around here. Great Debates is a rigorous forum, in which nobody would be well advised to throw around professional opinions without a thorough grounding in what they’re talking about. And you, my lad, do not know what you’re talking about when it comes to the issue of standing in the federal courts._

In point of fact, your precise claim was “that a federal appeals court decided an important question of state law: what right does a non-custodial parent have to control the religious upbringing of a child against the wishes of the custodial parent?” It is _this_ contention that is ridiculous. The 9th Circuit did not decide that a noncustodial parent _could_ control the child’s religious upbringing; it determined that the nonscustodial parent had sufficient interest in the controversy to raise the issue of whether the state could shove the “one nation under God” bit down the throat of his child. That is in no way, shape, or form a determination that California law allows the noncustodial parent “to control the religious upbringing of a child against the wishes of the custodial parent.”

Sorry, but Article III is not dependent upon state law.

Plus, your contention that Mr. Newdow seeks “to control the religious upbringing of a child against the wishes of the custodial parent” is patently absurd in light of his _actual_ legal claims. Mr. Newdow does not seek to prevent his child from attending church, or receiving religious instruction from her mother, or any other _private_ religious teaching. He seeks to prevent _the government_ from imposing a religious doctrine on his child.

Or do you think that the mother has some sort of right to have the government teach her child what’s what when it comes to religion?

> [@](#):
>
> Or that if the Supremes say Newdow has standing, it means nothing for the rights of non-custodial parents in California?

It means nothing for the rights of non-custodial parents _under California law_.

See, we have this little thing called the Supremacy Clause. It says, roughly speaking, that federal law trumps state law. That means that if Mr. Newdow has standing under federal law, California is powerless to take that standing away.

> [@](#):
>
> Or by wrong, do you mean that the court certainly will decide whether the regular morning classroom salute is constitutional?

Considering that I have not taken a stand on that specific issue, I can only conclude that you are retrieving this little bit of rhetoric from the same place where you found your claims about legal standing.

> [@](#):
>
> Or, do you simply mean this? _whoever doesn’t see things the way I do is either ignorant or stupid._

Haven’t quite figured out how to hammer that nail into your second hand, have you?

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<div class="post-metadata">

**Author:** ![LyricalReckoner](https://avatars.discourse-cdn.com/v4/letter/l/df788c/32.png) [@LyricalReckoner](https://boards.straightdope.com/u/LyricalReckoner)\
**Post date:** [December 5, 2003, 5:00am UTC](https://boards.straightdope.com/t/justice-scalia-and-the-pledge-of-allegiance-case/215412/68 "2003-12-05T05:00:52Z")

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In response to the essay, you had this to say:

> [@](#):
>
> \*Originally posted by minty green \*  
> \*\*As for the writer’s claim that the federal appeals court improperly determined a matter of state law when it determined that the noncustodial parent had standing to pursue his federal claim, that’s basically _ **NONSENSICAL** _. The question of standing in a federal court, and in a case involving a federal constitutional claim, is determined under federal law.

\*\*

Take a look at the 9th circuit’s ruling first. In their ruling, state law is central to Newdow’s claim for standing. Here’s some of what they had to say about that:

_We hold that a noncustodial parent, who retains some parental rights, may have standing to maintain a federal lawsuit to the extent that his assertion of retained parental rights UNDER STATE LAW is not legally incompatible with the custodial parent’s assertion of rights._

The court based its reasoning on another case decided by the 7th circuit court.

_The Seventh Circuit held, however, that noncustodial parents do not automatically lack standing under the IDEA. Instead, the court of appeals explained that whether the noncustodial father in Navin had standing depended on the parental rights granted or reserved to him in the DIVORCE DECREE._

The 9th goes on to examine other aspects of STATE LAW in considering Newdow’s standing. Why? You say Newdow’s standing is a matter of federal law. So why are the federal appeals courts looking at STATE LAW?

Earlier in this thread, you wrote:

> [@](#):
>
> \*\*I defy you to find any federal case stating that standing is determiend by the claimaint’s “personal interest” under state law.

\*\*

The present case is just such.  
In your last message, you wrote:

> [@](#):
>
> \*Originally posted by minty green \*  
> \*\*In point of fact, you claimed that we should “look for Justice Scalia to become fully involved in this case, whatever [the AP] says.”

\*\*

No. What I wrote was this:

_Justice Scalia sees it. He sees that the court isn’t going to settle the first question and that it’s not even going to consider the second question. If, for some reason, it does consider that second question, look for Justice Scalia to become fully involved in this case, whatever Ms. Holland says._

So you misquoted me, just the same way the essay talks about the AP misquoting Scalia.

You then went on to make this point:

> [@](#):
>
> \*Originally posted by minty green \*  
> \*\*Great Debates is a rigorous forum, in which nobody would be well advised to throw around professional opinions without a thorough grounding in what they’re talking about. And you, my lad, do not know what you’re talking about when it comes to the issue of standing in the federal courts.

\*\*

Rigor? You want to preach Rigor?  
Earlier in this thread, you wrote:

> [@](#):
>
> \*Originally posted by minty green \*  
> \*\*And I’m pretty positive that I’ve thought about the concept of standing far more often and deeplly than you probably have.

\*\*  
You know, it’s entirely possible for an idiot to study something for ten years, yet not know as much about it as someone else with a three-month correspondence course. Your argument that you’re a lawyer and you’ve been thinking about standing for a long time is a very weak argument, especially since it comes from one who claims to BE a lawyer. Jeeze . . . if that’s the case, you should know which argument to make!

Look . . . if you want to debate what I said in the essay, Fine! If I learn something from you, Great!

But I’m not going to waste any more of my time with someone so lacking in manners as you seem to be.

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<div class="post-metadata">

**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\
**Post date:** [December 5, 2003, 3:17pm UTC](https://boards.straightdope.com/t/justice-scalia-and-the-pledge-of-allegiance-case/215412/69 "2003-12-05T15:17:23Z")

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At the risk of explaining elementary stuff to people who already know it, it might be worthwhile to take the time to define standing.

Essentially, it is the right to pursue an action in a court of law – to sue, etc. (Some cases, e.g., criminal prosecutions, are not strictly suits, but the same adversarial structure exists.)

If I am going 65 MPH on a 55-MPH highway here in North Carolina, a Pennsylvania State Policeman down here on vacation cannot charge me with an offense against the statutes of Pennsylvania – their law does not govern North Carolina. He has no **standing**.

Though I am firmly convinced that DOMA violats the Federal Constitution, no part of the law works an injustice against me personally. Accordingly, I cannot challenge the law – I have no **standing**. **Mr Visible** and his life partner, on the other hand, could theoretically fly to Vermont, contract a civil union, return to Arizona, and attempt to do something which legally requires a married couple to do – buy a house as tenants by the entireties, for example. When their right to do so as a civilly-united couple is rejected by the state authority under DOMA, they can bring suit to challenge it – it has worked a harm against what they perceive as their rights. _This is true even if you believe they have no right to marry – what matters is that the law prohibit them from doing something they believe they have a constitutional right to do._

Similarly, what Newdow’s rights as a non-custodial parent under California state law may be have only a tangential relationship to his claimed right under Federal law to challenge the action of a local school board to coerce his child into professing a particular religious belief in violation of the pertinent clauses of the First and Fourteenth Amendments. It is the same right that gave Mr. Loving the right to bring suit against the Commonwealth of Virginia for prosecuting him and his wife for marrying in violation of the state laws. Under the state laws, he had no right to marry Mrs. Loving, and, having married out of state, had no right to live with her as husband and wife in that state. But he believed he had the right to marry her under the Constitution, and got the courts to validate it. Notice that he had **no right** to marry under state law; he had no standing to challenge the state law in the state courts. Where he founded his standing was in his claims as a citizen of the United States and his rights under the Federal Constitution – and the courts agreed that he had the right to challenge that law in Federal court.

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<div class="post-metadata">

**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\
**Post date:** [December 5, 2003, 3:58pm UTC](https://boards.straightdope.com/t/justice-scalia-and-the-pledge-of-allegiance-case/215412/70 "2003-12-05T15:58:35Z")

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> [@](#):
>
> \*Originally posted by LyricalReckoner \*  
> Take a look at the 9th circuit’s ruling first. In their ruling, state law is central to Newdow’s claim for standing. Here’s some of what they had to say about that:
> 
> _We hold that a noncustodial parent, who retains some parental rights, may have standing to maintain a federal lawsuit to the extent that his assertion of retained parental rights UNDER STATE LAW is not legally incompatible with the custodial parent’s assertion of rights._

Correct. But that is not “determining a matter of state law.” That is looking to _existing_ state law as support for federal standing. Under _existing_ California law, Mr. Newdow retains certain rights _vis a vis_ his child. It is because he still has _some interest_ in his child that he has standing to pursue his claims through the child.

Indeed, I made that very point in my very first post in this thread, though you have chosen to ignore it in your Quest to Be Perpetually Offended. Here it is, the sentence you omitted from the excerpt you just quoted: “The court can consider the party’s rights and obligations under state law in support or derogation of federal standing, but it’s still ultimately an issue of federal law.” So don’t come whining to me about selective quoting, my lad.

Now, once more, with feeling: _The court did not determine that California law authorizes federal standing for a noncustodial parent; it looked to California law to determine that Mr. Newdow has a “personal interest” in the litigation sufficient to satisfy his standing under federal law._

> [@](#):
>
> You say Newdow’s standing is a matter of federal law. So why are the federal appeals courts looking at STATE LAW?

Because they can. But they’re not _determining_ state law, amigo.

> [@](#):
>
> The present case is just such [i.e., a “federal case stating that standing is determiend by the claimaint’s ‘personal interest’ under state law.”

Not so, at least not in the sense that I intended that the sentence conveys when it is _not_ selectively quoted. Here it is again for you, in its original context:

> [@](#):
>
> _Originally posted by by me on page 1_  
> But _[whether federal law determines the rights of non-custodial parents] is not the issue for federal standing_. The issue for federal standing is whether the party invoking the federal court’s jurisdiction has a “personal interest” in the litigation, and that the injury alleged is capable of being redressed by the court. This is _not_ a matter of state law, and I defy you to find any federal case stating that standing _is_ determiend by the claimaint’s “personal interest” under state law.

Once again, allow me to repreat myself: “The court can consider the party’s rights and obligations under state law in support or derogation of federal standing, but it’s still ultimately an issue of federal law.” The 9th Circuit did not hold that California authorized Mr. Newdow’s lawsuit; it held that Mr. Newdow has sufficient personal interest in his child under California law to obtain federal standing in his lawsuit.

> [@](#):
>
> Look . . . if you want to debate what I said in the essay, Fine! If I learn something from you, Great!
> 
> But I’m not going to waste any more of my time with someone so lacking in manners as you seem to be.

When come back, brink cross.

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<div class="post-metadata">

**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\
**Post date:** [December 5, 2003, 4:00pm UTC](https://boards.straightdope.com/t/justice-scalia-and-the-pledge-of-allegiance-case/215412/71 "2003-12-05T16:00:45Z")

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“bring cross.”  
Dammit.

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<div class="post-metadata">

**Author:** ![LyricalReckoner](https://avatars.discourse-cdn.com/v4/letter/l/df788c/32.png) [@LyricalReckoner](https://boards.straightdope.com/u/LyricalReckoner)\
**Post date:** [December 5, 2003, 4:18pm UTC](https://boards.straightdope.com/t/justice-scalia-and-the-pledge-of-allegiance-case/215412/72 "2003-12-05T16:18:55Z")

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> [@](#):
>
> _Originally posted by Polycarp_  
> \*\*  
> Similarly, what Newdow’s rights as a non-custodial parent under California state law may be have only a tangential relationship to his claimed right under Federal law to challenge the action of a local school board to coerce his child into professing a particular religious belief in violation of the pertinent clauses of the First and Fourteenth Amendments.\*\*

Two points.

1. It’s a common misperception that Newdow’s suit had anything to do with his daughter being coerced into professing a religious belief. Take a look at Newdow’s complaint. Take a look at the ruling.

2. Then answer the question: if state law has so little to do with his standing, why did the appeals court dwell on it so? Why?

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<div class="post-metadata">

**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\
**Post date:** [December 5, 2003, 5:00pm UTC](https://boards.straightdope.com/t/justice-scalia-and-the-pledge-of-allegiance-case/215412/73 "2003-12-05T17:00:50Z")

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> [@](#):
>
> \*Originally posted by LyricalReckoner \* (emphasis added)  
> Then answer the question: if state law has so little to do with his standing, why did the appeals court dwell on it so? Why?

That is not a fair representation of what Polycarp and I have been telling you. State law had quite a lot to do with Newdow’s federal standing, in that state law–specifically, the rights retained by him as a non-custodial parent–provided the basis for his “personal interest” in the litigation.

Now, please get this simple concept through your head: The 9th Circuit _relied_ on state law for federal standing, but did not _determine_ anything at all about state law.

–or–

“The court can consider the party’s rights and obligations under state law in support or derogation of federal standing, but it’s still ultimately an issue of federal law.”

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**Author:** ![Ramanujan](https://avatars.discourse-cdn.com/v4/letter/r/51bf81/32.png) [@Ramanujan](https://boards.straightdope.com/u/Ramanujan)\
**Post date:** [December 5, 2003, 5:53pm UTC](https://boards.straightdope.com/t/justice-scalia-and-the-pledge-of-allegiance-case/215412/74 "2003-12-05T17:53:10Z")

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if i may add…it is my understanding (qualifier because i am not a lawyer) that dwelling on state law to determine standing under federal law _in no way_ determines whether or not the client would have standing under state law. as such, it is not, by any means, a determination of state law.

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**Author:** ![LyricalReckoner](https://avatars.discourse-cdn.com/v4/letter/l/df788c/32.png) [@LyricalReckoner](https://boards.straightdope.com/u/LyricalReckoner)\
**Post date:** [December 5, 2003, 6:26pm UTC](https://boards.straightdope.com/t/justice-scalia-and-the-pledge-of-allegiance-case/215412/75 "2003-12-05T18:26:51Z")

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> [@](#):
>
> \*Originally posted by Ramanujan \*  
> \*\*if i may add…it is my understanding (qualifier because i am not a lawyer) that dwelling on state law to determine standing under federal law _in no way_ determines whether or not the client would have standing under state law. as such, it is not, by any means, a determination of state law. \*\*

Hmmm . . . one of the briefs in the case says the following:

> [@](#):
>
> \*3. Newdow’s Article III standing to challenge the school district’s Pledge policy turns on a novel and unsettled ques-tion of California law that the Court should not decide without clear guidance from the California Supreme Court. This Court normally does not second-guess a court of ap-peals’ determination of state law. Doing so here would be particularly inadvisable because it would require the Court to decide a disputed state-law question with far-reaching implications for non-custodial parents under California law. Deciding that question against Newdow, moreover, could present the Court with further constitutional issues to re-solve. The Court should not expend its energies to such ends simply to reach the merits. Instead, it should deny the petitions and await a case without such complications. At most, the Court should grant the petition in No. 02-1624, vacate the Ninth Circuit’s judgment, and remand with a direction to certify to the California Supreme Court the state-law question on which Newdow’s Article III standing depends. The state court’s answer to that question could obviate any need to decide the federal constitutional claim.  
> \*

Is the lawyer who wrote that just plain ignorant as to what’s a stake here?

If there’s an unsettled question of state law, as in the present case, and the Supremes settle that question, it means nothing wrt state law?

Interesting!

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**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\
**Post date:** [December 5, 2003, 6:45pm UTC](https://boards.straightdope.com/t/justice-scalia-and-the-pledge-of-allegiance-case/215412/76 "2003-12-05T18:45:37Z")

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> [@](#):
>
> \*Originally posted by LyricalReckoner \*  
> Take a look at the 9th circuit’s ruling first.

Taking you up on your advice, I just re-read the court’s opinion for the first time since last June. Not surprisingly, you are completely misrepresenting the contents of the 9th Circuit opinion.

For those of you following along at home, [here](http://caselaw.lp.findlaw.com/data2/circs/9th/0016423p.pdf) is the final version of the 9th Circuit’s various opinions in the _Newdow_ case, .pdf format. The document includes, in order, Judge Reinhardt’s concurring opinion to the order denying en banc review; Judge O’Scannlain’s dissent to the denial of en banc review; Judge Goodwin’s opinion for the panel majority (i.e., _the_ opinion of the 9th Circuit); and Judge Fernandez’s concurring and dissenting opinion for the panel.

In addition, [here](http://news.findlaw.com/hdocs/docs/conlaw/newdowus62602opn.pdf) is the original, unrevised panel opinion. Though it has been withdrawn and replaced with the majority opinion linked above, it contains a significantly longer discussion of the standing issue. I include it merely for the sake of completeness, in order to show that LyricalReckoner is pull his assertions completely out of his ass.

> [@](#):
>
> In their ruling, state law is central to Newdow’s claim for standing.

Rubbish. The standing discussion is in Part C of the majority opinion. The discussion makes **no reference whatsoever to state law**. The only thing that comes even close is the court’s simple statement that “Newdow has standing as a parent to challenge a practice that interferes with his right to direct the religious education of his daughter.”

Now you can try to shoehorn that statement about the “right to direct the religious education of his daughter” into some allegedly broad determination of Newdow’s rights under California law, but that better be one damn big shoehorn, and even then, you’re nowhere near being able to justify your ridiculously broad claims about how state law was “central” to Newdow’s standing, and how the court purportedly “determined” matters of state law.

> [@](#):
>
> Here’s some of what they had to say about that:
> 
> _We hold that a noncustodial parent, who retains some parental rights, may have standing to maintain a federal lawsuit to the extent that his assertion of retained parental rights UNDER STATE LAW is not legally incompatible with the custodial parent’s assertion of rights._

Hmm, very interesting. See, I can’t find those words _anywhere_ in any of the opinions issued by the various 9th Circuit judges in _Newdow_. Could you perchance tell us where you got those words, and why you attribute them to the 9th Circuit? Thanks ever so much.

> [@](#):
>
> The court based its reasoning on another case decided by the 7th circuit court.
> 
> _The Seventh Circuit held, however, that noncustodial parents do not automatically lack standing under the IDEA. Instead, the court of appeals explained that whether the noncustodial father in Navin had standing depended on the parental rights granted or reserved to him in the DIVORCE DECREE._

Nope, that’s not in there either. Explanation, please?

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**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\
**Post date:** [December 5, 2003, 6:54pm UTC](https://boards.straightdope.com/t/justice-scalia-and-the-pledge-of-allegiance-case/215412/77 "2003-12-05T18:54:58Z")

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> [@](#):
>
> \*Originally posted by Ramanujan \*  
> if i may add…it is my understanding (qualifier because i am not a lawyer) that dwelling on state law to determine standing under federal law _in no way_ determines whether or not the client would have standing under state law. as such, it is not, by any means, a determination of state law.

Correct. Although state courts often look to federal standing principles for guidance on how to apply their own standing requirements, federal standing principles do not in any way bind the state courts in determining who can sue for relief in their courts.

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**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\
**Post date:** [December 5, 2003, 7:03pm UTC](https://boards.straightdope.com/t/justice-scalia-and-the-pledge-of-allegiance-case/215412/78 "2003-12-05T19:03:59Z")

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> [@](#):
>
> \*Originally posted by LyricalReckoner \*  
> Is the lawyer who wrote that just plain ignorant as to what’s a stake here?

Possibly. Or possibly he’s just making a legal argument with little or no chance of succeeding. We do that sometimes, you know. Perhaps I could tell you more if you’d be so kind as to provide a link to this amicus brief you’re cribbing all your claims from.

> [@](#):
>
> If there’s an unsettled question of state law, as in the present case, and the Supremes settle that question, it means nothing wrt state law?

And if monkeys fly out of your ass, will the beating of their wings cause a thunderstorm in Belize?

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**Author:** ![LyricalReckoner](https://avatars.discourse-cdn.com/v4/letter/l/df788c/32.png) [@LyricalReckoner](https://boards.straightdope.com/u/LyricalReckoner)\
**Post date:** [December 5, 2003, 7:17pm UTC](https://boards.straightdope.com/t/justice-scalia-and-the-pledge-of-allegiance-case/215412/79 "2003-12-05T19:17:54Z")

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> [@](#):
>
> \*Originally posted by minty green \*  
> \*\*Hmm, very interesting. See, I can’t find those words _anywhere_ in any of the opinions issued by the various 9th Circuit judges in _Newdow_. Could you perchance tell us where you got those words, and why you attribute them to the 9th Circuit? Thanks ever so much.
> 
> Nope, that’s not in there either. Explanation, please? \*\*

Take a look at the court’s opinion on Banning’s motion for leave to intervene.

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**Author:** ![SkipMagic](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/skipmagic/32/20706_2.png) [@SkipMagic](https://boards.straightdope.com/u/SkipMagic)\
**Post date:** [December 5, 2003, 7:23pm UTC](https://boards.straightdope.com/t/justice-scalia-and-the-pledge-of-allegiance-case/215412/80 "2003-12-05T19:23:10Z")

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> [@](#):
>
> \*Originally posted by LyricalReckoner \*  
> \*\*Take a look at the court’s opinion on Banning’s motion for leave to intervene. \*\*

Why not post them, verbatim, with a link to the cite?

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