Other than the Washington Post editorial board, few in America were pleased by yesterday’s Supreme Court ruling in Elk Grove Unified School District v. Newdow, better known as the Pledge of Allegiance case. The opinion for the Court did not address the constitutionality of the Pledge, but rather held that the plaintiff, Michael Newdow, lacked standing to sue on behalf of his daughter since he did not have legal custody when he originally filed the case. Without standing, Newdow’s First Amendment argument could not be heard, which means that the Pledge may be recited in public schools — at least for the time being.
While the Post said that “Americans ought to be grateful” for the Court’s avoidance of the hot-button Establishment Clause issue, activists on both sides disagreed. Americans United for the Separation of Church and State found the ruling “disappointing” and predicted that the Pledge would soon be before federal courts again. The Family Research Council, too, desired a decision on the merits, saying that the Court would “not be able to sidestep this issue for long.” Newdow agreed, telling CNN that he knew “numerous people who have expressed a willingness to be plaintiffs” in a court challenge similar to his.
Certainly there will be no shortage of volunteers for such a task. A large segment of the population longs to be famous, and for the undistinguished masses, having your name attached to a Supreme Court case whose issue the public actually understands is one of your best shots at everlasting fame — or at least fame for your surname. (After all, who actually remembers anything about the Brown in Brown v. Board of Education, or the Wade in Roe v. Wade?) Furthermore, activist groups are always on the lookout for the perfect plaintiff with which to challenge whatever government action is offending them this day. Becoming involved in newsworthy cases like Newdow or Gratz v. Bollinger or Lawrence v. Texas is a key fundraising strategy, no matter the outcome. In fact, in the long run losing may be better than winning, since a loss enables such groups — no matter their political orientation — to issue red alerts to members stating that funds are desperately needed to fight the latest evil perpetrated by an activist Supreme Court.
There is something a little sad in all of this. In both the civil and political spheres, Americans now turn directly to judges with their disputes, instead of first attempting personal or electoral solutions that are less drastic. Michael Newdow, an avowed atheist, pursued his case against the wishes of his now 10-year-old daughter, who her mother says is a practicing Christian. As Justice Stevens, writing for the Court, pointed out yesterday, the Pledge case involves more than “Newdow’s interest in inculcating his child with his views on religion…. [M]ost important, it implicates the interests of a young child who finds herself at the center of a highly public debate over her custody, the propriety of a widespread national ritual, and the meaning of our Constitution.”
Children in public schools have had the right since 1943 to sit silently at their desks during the recitation of the Pledge, but this accommodation was not sufficient for Michael Newdow. Although he could have tried to handle issues of his daughter’s religious education directly with her mother, could have lobbied the local school board to change its policy of using the Pledge to fulfill California educational requirements in patriotism education, or could have worked within the political process to get the state statute changed, Michael Newdow filed a lawsuit in federal court instead. And Michael Newdow, a doctor as well as a non-practicing lawyer, argued his case all the way to the Supreme Court, earning plaudits for his performance from those who should know better.
No doubt the next round in this fight will be almost as exciting. But in making constitutional confrontations out of every small grievance, we lose something. And our ability to debate issues in the political sphere instead of in court, once lost, may not be recoverable.