Federalism and family law in the Newdow Court's standing decision.

It's late and it's been a long day, the first day of summer Conlaw and the deadline –met!--for Spring semester grades, but let me get my final Newdow post in. I can see I got a nice Instapundit link for my multiple Newdow posts, so I want to take the opportunity to talk about Justice Stevens' approach to standing, which decided the case for the majority. I'm particularly interested in this aspect of the decision, not just because I'm a Federal Jurisdiction lawprof, but because I've often written about the interplay between state and federal law and the effect of the state court's authority over state law on the jurisdiction of the federal courts. (Bush v. Gore presented questions of this kind, by the way.)

In Newdow, the power of the federal court to hear Newdow's case depended on Newdow's standing as a plaintiff. Federal standing has two aspects, constitutional and subconstitutional (usually termed "prudential"). To meet the constitutional requirement of standing (which is derived from the "cases" and "controversies" language in Article III of the Constitution), the plaintiff must have a "concrete and particularized" or "distinct and palpable" injury. No one on the Court seriously questioned that Newdow had such an injury. It's not surprising that the Stevens opinion doesn't take this aspect of standing seriously, because the Justices who joined this opinion (other than Kennedy) usually aren't very strict about standing requirements, and the "prudential" standing problem they found accomplished the task of obliterating the case. It is surprising that Chief Justice Rehnquist, who usually is stricter about standing requirements, does not see any problem here.

What injury did Newdow suffer as a parent of a child who participates in the Pledge? Rehnquist refers to Newdow's "right to influence his daughter’s religious upbringing and to expose her to his views" but only in the context of criticizing Stevens' "novel" prudential limitation on standing. He does not address why this is a substantial enough injury to meet the constitutional requirements of standing. How does the Pledge cause a concrete injury to his interest in exposing his daughter to his views? He is still able to express his views. He is injured by the fact that she hears other views? It seems to me that the concurring Justices ought to have taken this problem seriously before going on to address the question whether the Establishment Clause was violated.

Justice Stevens' relies on a subconstitutional limitation on standing that is very much tied to the traditional role of the states making the law that governs family relations. Though the Justices joining the Stevens opinion (other than Justice Kennedy) are not usually the ones we find getting excited about enforcing federalism, Stevens has found a new use for federalism. That is especially surprising because it comes from the Justices who are usually the most interested in preserving the role of the federal courts in the enforcement of federal constitutional rights.

The idea Justice Stevens develops is that the state courts, applying state law, have already defined the rights of the child's father and mother and determined that the mother has the final say in decisions about the child's education and welfare. The mother thought the litigation over the Pledge would hurt the child, and the state court, recognizing her state law legal rights, enjoined the father from making the child a party to the lawsuit. The father was still free to sue on his own, without the child as a party, but his theory of standing to litigate still rested on his status as a father. (Constitutional standing doctrine would not allow him to sue based only on his opposition to the Pledge as a citizen.)

So what exactly was the prudential standing limitation Justice Stevens found? It seems to be that the federal courts ought to decline to act at the behest of someone who sues relying on his status as a parent if the child would be harmed by the lawsuit. Significantly, the federal court will not determine for itself whether the lawsuit is harmful to the child, but will abide by the state court's use of state law to determine which parent has the final authority to say what is harmful to the child. So, even though Newdow as a parent asserts that he is doing good for his child, California has given the mother the legal authority to decide what is good for the child, and the prudent federal court, apparently out of respect for the state, ought to abide by the decision of the mother.

Do I think the Stevens group would have said that if they weren't looking for a way both to make Newdow lose and to avoid weakening Establishment Clause doctrine? Of course not!