Newdow and Parental Rights

Most (but not all) religious folks have breathed a sigh of relief now that the Supreme Court has allowed "under God" to remain in the pledge of allegiance, if only for the time being. However, I haven't seen much attention paid by religious folks to the standing analysis on which the Court's ruling was based. In essence, Justice Stevens' majority opinion suggests that noncustodial parents have very limited power over their children's religious upbringing:

. . . Newdow requests relief that is more ambitious than that sought in [the previous California cases Mentry and Murga]. He wishes to forestall his daughter's exposure to religious ideas that her mother, who wields a form of veto power, endorses, and to use his parental status to challenge the influences to which his daughter may be exposed in school when he and Banning disagree. The California cases simply do not stand for the proposition that Newdow has a right to dictate to others what they may and may not say to his child respecting religion. Mentry and Murga are concerned with protecting " 'the fragile, complex interpersonal bonds between child and parent,' " 142 Cal. App. 3d, at 267, 190 Cal. Rptr., at 848, and with permitting divorced parents to expose their children to the " 'diversity of religious experiences [that] is itself a sound stimulant for a child,' " id., at 265, 190 Cal. Rptr., at 847 (citation omitted). The cases speak not at all to the problem of a parent seeking to reach outside the private parent-child sphere to restrain the acts of a third party. A next friend surely could exercise such a right, but the Superior Court's order has deprived Newdow of that status.

In our view, it is improper for the federal courts to entertain a claim by a plaintiff whose standing to sue is founded on family law rights that are in dispute when prosecution of the lawsuit may have an adverse effect on the person who is the source of the plaintiff's claimed standing. When hard questions of domestic relations are sure to affect the outcome, the prudent course is for the federal court to stay its hand rather than reach out to resolve a weighty question of federal constitutional law. There is a vast difference between Newdow's right to communicate with his child--which both California law and the First Amendment recognize--and his claimed right to shield his daughter from influences to which she is exposed in school despite the terms of the custody order. We conclude that, having been deprived under California law of the right to sue as next friend, Newdow lacks prudential standing to bring this suit in federal court.

This reasoning makes a certain amount of sense to me, but I'm wondering if its application and certain extension by lower courts could cause problems. After all, in the Church's view, "[t]he task of educating belongs fundamentally and primarily to the family." (Instruction on Christian Freedom and Liberation para. 94) Does a parent's loss of legal custody diminish his share of responsibility for the child's education, or deprive him of moral standing to assert claims on behalf of the child's well-being? Is his cognizable interest really limited to what occurs within "the private parent-child sphere?" Are we comfortable with the Supreme Court drawing legal distinctions between a parent's "right to communicate with his child" and his right to "shield his daughter from influences to which she is exposed?" Maybe this is an acceptable outcome to this particular case, and I certainly think that, for prudential reasons, a custodial parent may need to have a greater legal voice in the upbringing of the child, but it seems that there may be factual scenarios where this reasoning will come back to haunt those who favor robust parental rights, not just robust custodial parental rights, in the educational sphere.

UPDATE: A reader emailed me to confirm that my concern has at least some grounding in reality. He currently is litigating on behalf of a non-custodial parent who is being denied input into the religious formation of his child, in favor of foster parents' religious formation decisions. He writes that he fully expects to see the Newdow majority's reasoning injected into the case.

Rob