Justice Scalia and the Pledge of Allegiance case

Great Debates
81

“Coercion” – it is my understanding that, in cases affecting children, the courts take judicial notice of the fact that children tend to do what they are instructed to by an adult seen as an authority figure, and tend to prefer to do what most of the other kids are doing. While the school board regulation may provide that no child is to be obliged to stand, salute the flag, and recite the pledge, and it may even be the case that some teachers in fact explain that to the kids, there is pressure to do what the teacher says is going to be done and what most of the other kids do. The courts have historically been solicitous of the rights of small children not to be obliged to decide between exercising a constitutional right they may not even understand clearly and this tendency to fllow the adult authority figure and/or fellow students.

If you;'ve got a better word than “coercion” I’ll be happy to change my usage.

82

Oh wait, I get it. There was a separate opinion issued on the mother’s motion to intervene. The issue presented was, however, clearly an issue of federal law: “Does the grant of sole legal custody to Banning deprive Newdow, as a noncustodial parent, of Article III standing to object to unconstitutional government action affecting his child?”

As ought to be bloody well obvious by now, the court did not determine what Newdow’s rights were under state law. Rather, it determined that state law does provide the noncustodial parent sufficient rights to constitute a “personal interest” that confers federal standing on Mr. Newdow.

Specifically, the court held 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 then cites two separate California Court of Appeals decisions stating that noncustodial parents “maintain the right to expose and educate their children to their individual religious views, even if those religious views contradict those of the custodial parent or offend her.” Given those holdings of the California state courts, I can’t even begin to fathom how you think that the 9th Circuit itself determined anything about the rights of a noncustodial parent under California law.

83

That’s not my point. I agree that the Supremes might well agree that just expecting school children to listen to the others say the pledge is coercion and state-sponsored religious indoctrination, as they call it.

My point was that Newdow wasn’t arguing coercion. He wasn’t arguing that his daughter’s rights were violated. He argued that HIS rights were violated. This whole thing is about HIS rights, not hers.

Many make the mistake of assuming that the case is about her, rather than HIM.

84

I’m not surprised!

You don’t actually charge clients for your inability to fathom things, do you?

85

Take it to the Pit, schmuck.

86

LyricalReckoner, you are incorrect. The federal and state judicial systems are wholly separate. If there were California statutes and judicial decisions holding that someone in Nedow’s situation had absolutely no interest whatsoever in his child’s upbringing, and accordingly had absolutely no standing on anything concerning his child under California law, the federal courts can still say, “Well, goody for California. We hold that Nedow has standing to pursue a federal cause of action.”

This is known as “federalism.” Separate institutions making their own separate determinations as to who can come before them and seek relief.

Sua

87

Not sure I’m following you on this. Are you saying that Newdow would have standing in federal court even if the girl didn’t exist? If so, are you saying that anyone can challenge school district policies even if those policies have no effect on them?

Or, are you saying that even if California said Newdow had no rights wrt to the girl, then he could go to federal court and claim that the California courts were denying him his rights?

Or, are you saying something else altogether? I didn’t get the bit about federalism or the judicial systems being completely separate.

88

No.

If so, are you saying that anyone can challenge school district policies even if those policies have no effect on them?
[/QUOTE]

No.

Nedow could not go to a federal court and assert that the California courts were denying him his rights under state law. Under the principle of federalism, federal courts may not determine that a state court has improperly applied state law.
Nedow could, however, go to a federal court and assert that the California courts were denying him his rights under federal law.
Whether Nedow’s claim is successful is another question.

Going to federal courts and claiming that a state court has denied a person his/her federal rights is quite common - a well-known form of this are writs of habeus corpus brought in federal courts by state prisoners.

I am saying something completely else altogether.

This is the starting point: the federal government and the states set their own rules as to whom has standing to bring a cause of action in the respective court systems. The federal court follows the federal rules, and the state courts follow the state rules.
To present a ridiculous example, if Congress were to pass a law holding that any person related by blood or marriage to a child who habitually wears purple clothing has an interest in any matter affecting that child, then a purple-clad second cousin twice removed has standing in federal courts.
If the state rule requires that the individual must be the custodial parent, our second cousin cannot bring suit in that state on behalf of a child.

Now, there is a constitutional constraint on federal standing rules: there must be an actual “cause or controversy” before a party has standing. To determine whether there is an actual cause or controversy, it must be determined whether the individual bringing suit has an interest in the outcome of the case. To make that determination, a federal court may look to what interest the individual has under applicable state law, but the state’s determination of interest is not binding on the federal court - the individual may also have interest that is recognized by federal law but denied by state law.

If Congress had passed a law that states that “standing in federal courts is determined by state law,” then state determinations of interest would be binding on the federal courts. Congress did not, so the federal courts are not so bound.

This is federalism. As a practical matter, federal and state rules on standing, based as they are on a shared common law tradition and concepts of justice, are very similar - if one has standing to bring an action in one system, the odds are high that one has standing to bring the same action in the other system, and if one doesn’t have standing in one system, the odds are high that one doesn’t have standing in the other system. But they are not identical, and a determination of standing in one system is not binding on the other system.

Sua

89

Actually, I don’t think that’s completely accurate. While Congress has broad power to define the jurisdiction of the federal courts, the “case or controversy” standing requirement is a constitutional prerequisite and cannot be obviated by Congress.