NOTE: There was a prior version of this up for a while that I fired off rather rapidly before lunch. This is the edited-for-coherence version.



The Des Moines Register is disappointed with the 9th Circuit ruling in Newdow yesterday. Key quote:



"Talk about those pesky legal technicalities cheating the people out of an answer to an important question. Is the phrase constitutional or isn't it? In the past the Supreme Court has ruled government should remain neutral on matters of religion. The court's own precedents would seem to point toward prohibiting the phrase "under God" in an oath that is recited at the behest of a government, as in a public school."



For the record, I'd like to know whether it's constitutional or not as well. But this was not some "pesky legal technicality."



First, there's the familial situation behind the suit. According to the press, Newdow has been fighting with his ex-girlfriend in court for years over the custody of their child, and his tactics have been utterly appalling. Check out this USA today article here, the WorldNet Daily story here or the Fox News story here.



The background: apparently, Banning and Newdow dated briefly after her divorce. They split up and she got pregnant. At first, he tried to get out of his parental responsibilities, claiming he had been "date raped" - which the judge in his family court hearing called patently ridiculous. At some point, Newdow has a change of heart and decides he wants custody of the kid. He isn't given full custody, but instead visitation rights. He doesn't find that fair because it isn't a 50/50 split. He's also got a pending suit against the family court system trying to get it declared unconstitutional. Apparently he's a numbers guy - if it's his kid, he wants her half the time. He hasn't discovered this whole "best interest of the child" standard that is driven by her needs and not a timeclock. And he apparently doesn't take her interests or opinion into account at all - I say that because the child and her mother both regularly attend the Calvary Chapel, and the kid herself is noted as liking to lead the class in the pledge and vehemently disagreeing with her father's lawsuit.



In other words, this suit could be just a pawn in the entire custody game. If nothing else, it makes life very difficult for the child.

Picture you're 9 and your father stirs up all this national media attention surrounding you, and it's on an issue you don't even agree with him on. He doesn't give a damn about your opinion, just his cause. Yet, he can use you as he likes to bring suit in your name without having custody of you or the ability to make legal decisions on your behalf. I'd find that rather frustrating, particularly knowing how the other kids are likely to tease or harass her for her father's views. It's one thing for a 9-year-old to take on that kind of pressure if the kid agrees with the cause, but an utterly different one if the kid is forced into taking it on for a cause she doesn't agree with.



Of course, that's just the emotional argument. Here's the legal one:



1) It is Banning, not Newdow, who is that child's custodial parent, and has the right to decide her religious and educational upbringing. If Newdow doesn't like how his child is being raised, the proper place to fight it out is the family courts. Otherwise, there could be all kinds of collateral suits incidental to acrimonious divorces clogging up the federal and state courts.



2) As a rule, standing is required in order to ensure that the person suing is one who is actually harmed by the alleged wrong being claimed. This is to keep the Courts from being clogged with suits brought by people who are bored or fanatics. Start thinking about the possibilities that could come about if someone could bring suit for something they don't like that was being done to another person in the world, whether the object of the suit wanted to sue or not. If you take the hypothetical out far enough, plaintiff's firms could make a killing by cutting out the plaintiff and suing directly in their name. None of this 1/3 contingency fee crap, we want the whole thing!



3) We have one Supreme Court with nine very human judges and they don't have the capability or the time to tackle every issue that anyone in the country thinks is important. So we have to limit the number of suits brought before them to a manageable number. One way is through requiring the person bringing suit to actually have a stake in the outcome. It is a nice rule, because it culls out suits for a reason, not just some arbitrary lottery. The people who favored Newdow's position can always bring suit on behalf of their own, similarly-situated children.



We'll get an answer eventually. I won't recommend we do it by sacrificing the standing issue. It culls out frivolous or malicious suits and helps ensure that the Court spends its time hearing cases that actually make a difference in the lives of the litigants, not acting as law professors or philosophers by making sweeping proclamations of what the law should be on some theoretical plane.





UPDATE:



Professor Yin's got a post on the standing issue.



He also got a new flatscreen TV. I just had to replace the TV and the computer as the ex took them, but I blew my budget on a really cool laptop, complete with a flatscreen monitor, cordless keyboard and mouse, and integrated scanner/fax/printer, so I couldn't afford a flatscreen. I got a nice regular 32". Of course, now I wonder if I chose wisely, but isn't that always how it goes? I also found a few intelligent guys at Best Buy who really were helpful in selecting some of the peripherals, though I'd already decided on the computer itself. It's getting to be a better store, they used to be long on pressure and short on knowledge.