I rarely agree with Dahlia Lithwick about much of anything, but when it comes to the pledge case, I think she's right. The default position any time a court bases its decision on an issue other than the press or a large portion of the populace thought was the truly important one is to claim that said court was chickening out or using a "technicality". Lithwick's article argues that this is not what happened in the Pledge case.
Last week Vincent Munoz basically brushed off the issue of custody as unimportant.
If the Court dismisses the case on the technical grounds of standing, a new lawsuit would be filed immediately. Sooner or later, the Court will have to decide the case on its merits. It might as well do so now, and avoid another round of costly litigation.
To that I responded:
The lack of custody is the basis for the lack of standing argument that has been raised. Munoz urges the court to dismiss argument because the Court will have to decide the issue eventually so they, "might as well do so now, and avoid another round of costly litigation. In doing so he overlooks some very important points.
The first is that courts have a duty to decide each issue of a case on the merits of that case. If the Court dismisses the standing issue solely on the ground of expediency it ceases to become a court at all.
Second, the issue of whether or not a non-custodial parent has the right to bring law suits on behalf of their child is a very important one, and will become more so as the two parent household continues to disintegrate. What Munoz is asking the court to do is to give short shrift to one issue in order to decide another.
Today Lithwick wrote:
Even if you believe the words "under God" violate the Constitution, as I do—or at least violate the court's line of cases in this area, as does Clarence Thomas—it's reasonable to say that Elk Grove Unified School District v. Newdow just wasn't the right case to test that proposition.Too many other things were at stake. You can call them "technicalities." I like to call them "children."
Ask a divorced or unmarried parent with primary custody of a child what was at stake in this case, and you'll get an answer that differs profoundly from the headlines: The lawyer's trick here came from Michael Newdow, who wanted to override the religious decisions made by his daughter's mother. (The two never married.) Allocating the duties and obligations of custodial and noncustodial parents has always been the province of state courts. It's a hideous job, and no one should have to do it. But the simple fact is that judges decide on a primary parent, and the other parent can either try to change that arrangement or learn to live with it. Initially, Newdow went for door No. 3. He tried to use a backdoor to force the issue first and only tried to modify the custody agreement later.
Read the whole thing.
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