Rehnquist said that the issues raised in the case "certainly have nothing to do with domestic relations." And, Justice David H. Souter said that Newdow could argue that his interest in his child "is enough to give him personal standing."
On the establishment clause issue, though, it seems to me that the school district has the votes to prevail. Reuters lists these comments:
"She [the daughter] does have a right not to participate," Justice Sandra Day O'Connor said.
Rehnquist said the pledge "doesn't sound anything like a prayer."
And Justice David Souter asked whether the affirmation of God in the midst of a civic exercise "is so tepid, so diluted, so far from a compulsory prayer that it should in effect be beneath the constitutional radar."
The Souter vote is especially important. If Newdow is going to accumulate 5 votes, based on past voting patterns, I am certain that one of the votes would need to be Souter's. I can see it's in the form of a question, but I would surmise that Souter likes the de minimis argument. If so, the question becomes: does Newdow lose on the merits or lose because he lacks standing?
A dismissal on the standing ground would leave the constitutional issue open, and local decisionmakers might on their own eliminate the phrase (or the whole Pledge) in an effort to meet what they find to be a constitutional requirement. If standing is met, however, and Newdow loses on the merits, the announcement will have been made that the phrase is constitutional, which will give those who want to use it confidence and clout.
MORE: More oral argument text, specifically on the standing issue, from Linda Greenhouse's article in tomorrow's Times:
"I as her father have a right to know that when she goes into the public schools she's not going to be told every morning to stand up, put her hand over her heart, and say your father is wrong, which is what she's told every morning ... Government is doing this to my child. They're putting her in a milieu where she says, `hey, the government is saying that there is a God and my dad says no,' and that's an injury to me."
The requirement of standing is that a litigant have a "concrete and particularized injury"--as opposed to a "hypothetical" or "abstract" injury--that he is seeking to redress through the lawsuit. The injury asserted in that argument is the mere fact of government having different values from the child's father. But schools are constantly teaching things that are at odds with what parents espouse at home. And government is constantly saying things that many people disagree with. If this is a good enough injury to give standing to sue, that might mean one could sue whenever government acts in a way that reflects a belief that is different from what a parent believes. So what if government says one thing and you think another? You're saying you're injured because your child's respect for you is diminished because you don't agree with the government?
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