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One of my all-time favorite running backs is former Dallas Cowboy, now Arizona Cardinal, Emmitt Smith. His running style is absolutely fluid. While the play is happening, he seems to move in a straight line. But judging from the linemen and linebackers who miss him, it’s impossible to tell where he’s going. Only upon review of the tape does the line he chose seem perfectly obvious. Watching the Supreme Court is sometimes like watching Emmitt Smith. The justices will decide a case that seems to be on one line while it’s coming at you, but then, reviewing the playback several years later, you realize that seemingly innocuous ruling was where the Court made a significant change in direction. For example, when the Court ruled in Connecticut v. Griswold (1965) that there was a right to marital privacy, few predicted the line that holding would follow. By the time Roe v. Wade struck down criminal prohibitions of abortion in 1973, the change in direction seemed rather obvious. I think there is a good chance that the June 14 ruling in Elk Grove Unified School District v. Newdow could be just such a case in the Court’s establishment clause jurisprudence. THE DAD AND THE DAUGHTER The Newdow case was filed by the atheist father of an elementary school student. Michael Newdow claimed that having her hear the words “under God” as part of the state-mandated recitation of the Pledge of Allegiance violated the First Amendment’s directive that “Congress shall make no law respecting an establishment of religion.” When he originally filed the case, he sued as his minor daughter’s “next friend,” as well as on his own behalf. The U.S. Court of Appeals for the 9th Circuit agreed with him, and held that the words “under God” in the Pledge violated the Constitution. But it was only after the 9th Circuit’s decision was publicized that Sandra Banning, the little girl’s mother — who had been granted sole legal custody, “including the sole right to represent [the daughter's] legal interests and make all decision[s] about her education” — realized that her daughter had nominally been part of the case. Both Banning and her daughter profess a belief in Jesus Christ, have no objection to hearing or reciting the words “under God,” and, most important, did not wish for the daughter to go through the remainder of her life as “that little girl responsible for having the Pledge declared unconstitutional.” Banning sued to intervene, bringing to the 9th Circuit’s attention her view that Newdow had no legal right to sue on the little girl’s behalf and therefore lacked standing altogether. Newdow then withdrew his claim that he represented his daughter and said that he sued only in his own right. The 9th Circuit held that Banning could not intervene in light of Newdow’s representation that he now sued based solely upon his own interests as a noncustodial parent, and that Newdow still had standing. The court affirmed its prior opinion striking down the Pledge. The Supreme Court granted certiorari on two questions: first, whether in light of Newdow’s lack of legal custody he had standing to assert his claim, and second, if he did have standing, whether the words “under God” violated the First Amendment. Reversing the 9th Circuit, the Court held that he did not have standing. IN THE ZONE Initial reviews of the Newdow decision — released on Flag Day and the 50th anniversary of the congressional legislation adding the words “under God” to the Pledge — were that by resolving the case on standing, the Court had “ducked” on the merits so as not to offend Americans’ patriotic sensibilities. Various groups sympathetic to Newdow’s position immediately vowed to find a litigant with standing to bring up the whole dispute again, so we will, no doubt, find out whether that view is right fairly soon. But I contend that the Court’s ruling represents more than simply a delay in the battle of the Pledge. A closer reading suggests that the Court is tightening up where the “zone of interests” protected by the establishment clause lies and when those interests are burdened enough to violate the First Amendment. The Court noted that two possible standing arguments existed: Article III standing under the Constitution and the “judicially self-imposed limits on the exercise of federal jurisdiction” embodied by the doctrine of prudential standing. Newdow argued that he had Article III standing, or a personalized injury traceable to the challenged action likely to be redressed by a favorable ruling, because the state-sponsored words “under God” might send his daughter the message that her father’s disbelief is disfavored. Newdow said this violated his right as a parent to impart to his daughter his religious views without state interference. Instead of ruling on whether Newdow had Article III standing, the Supreme Court dismissed his claims for lack of prudential standing. The Court described this as a self-created doctrine that prohibits someone from raising another person’s legal rights, bars adjudication of generalized grievances more appropriately addressed by the legislature, and requires that the complaint “fall within the zone of interests protected by the law invoked.” The Court did not deny Newdow’s zone of interest — the right to teach his daughter about religion free from state interference — but held that this right could not be viewed in isolation. Also involved were the mother’s interest in educating her daughter, backed by California’s grant of sole legal custody, and the little girl’s interest in not finding 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.” After weighing the various interests, the Court observed that “[n]othing that either Banning or the School Board has done, however, impairs Newdow’s right to instruct his daughter in his religious views. . . . 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” granting the mother the sole right to make decisions regarding the girl’s education. In an opinion by Justice John Paul Stevens joined by Justices Anthony Kennedy, David Souter, Ruth Bader Ginsburg, and Stephen Breyer, the Court concluded 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.” Thus, what is most notable about the Court’s holding is not that it denied Newdow’s claimed interest or injury, but rather that it implied his interest was not overly infringed by the state action at issue, and that his interest — admittedly protected by the First Amendment — could not overcome the countervailing interests held by the mother and daughter. RETHINKING THE CLAUSE It is unusual for the Supreme Court to address standing at all in the context of the establishment clause. Since Valley Forge Christian College v. Americans United for Separation of Church and State (1982), where the Court denied taxpayers standing to challenge the free transfer of surplus government property to a Christian college, the Court has rarely commented on the issue. Indeed, federal courts had largely lapsed into assuming that standing exists in establishment clause cases so long as one holds a minority religious view. For example, in City of Edmond v. Robinson (1995), the 10th Circuit found that a city seal containing a Christian cross violated the establishment clause. Chief Justice William Rehnquist, joined by Justices Antonin Scalia and Clarence Thomas, dissented from denial of certiorari, stating that there was a serious question of standing where “the only factual statement as to what injury respondents . . . might have suffered is that ‘[p]laintiffs are non-Christians who live or work in Edmond.’ ” If nothing else, then, the result in Newdow demonstrates that the Court is now willing to take a harder look at standing in establishment clause cases. Equally important, the decision may say something about the “zones of interest,” or core values, protected by the establishment clause. Newdow’s articulation of his interest — that state use of the words “under God” made his beliefs look like those of a disfavored outsider — was a direct pitch to Justice Sandra Day O’Connor, who agreed, along with Rehnquist and Thomas, that Newdow had standing. (Scalia recused himself from the case.) O’Connor, who said she would have upheld use of “under God,” has long espoused the view that the core value of the establishment clause is the prevention of state “endorsement” of religion. As she wrote in her 1984 Lynch v. Donnelly concurrence — and has repeated many times since, including in her Newdow concurrence — “endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.” Although some of the five justices in the Newdow majority have from time to time agreed with O’Connor’s articulation, it is meaningful to note that if any still agree with her, that was not enough to carry the day. Indeed, the five did not disagree with Newdow’s claim of injury for Article III purposes. But that injury was not strong enough for prudential standing/”zone of interests” purposes. A BETTER WAY TO DUCK? If the Supreme Court had really wanted to duck without reflecting at all on the merits of Newdow, there was an easier route. Recall the 1972 case of Flood v. Kuhn, where the Court examined whether baseball’s ability to trade a player without his consent violated federal antitrust laws. The Court observed that it had first examined the issue a half-century earlier in Federal Baseball Club of Baltimore v. National League of Professional Baseball Clubs (1922), which held that professional baseball was exempt from federal antitrust laws because the Court then did not believe it was part of interstate commerce. The Flood Court acknowledged that by 1972 baseball was clearly part of interstate commerce, but held that because baseball had come to rely on the exemption in the interim 50 years, stare decisis required its continuation. Similarly, the Newdow Court could have said that in the 50 years since the words “under God” became part of the Pledge of Allegiance, generations of schoolchildren have recited that Pledge, making it a part of our nation’s fabric. The Court could have observed that in numerous cases, beginning with Engel v. Vitale (1962), use of the words “under God” was presumed to be constitutional so that there was a continuing societal reliance on that legality, just as in Flood. In sum, the Newdow decision may mark the beginning of an important shift in establishment clause jurisprudence. The Supreme Court has indicated a reborn interest in reviewing the question of standing, so that simply claiming minority religious status may no longer be sufficient. It appears that Justice O’Connor’s bid to describe the establishment clause’s core interest as protecting religious minorities from feeling like “outsiders” is dead. And the zone of interests and persons protected by the establishment clause is being re-examined and tightened. This tightening will eventually require the Court to revisit the issue of what counts as “coercion” for establishment clause purposes. Justice Thomas argued for precisely this in his Newdow concurrence, calling for the Court to jettison Lee v. Weisman (1992), which found that invocations and benedictions could not be given at high school graduations because of the “subtly coercive” effect of peer pressure. Thomas argued that the coercion implicated by the establishment clause is not student peer pressure (or the desire not to be seen as an outsider), but rather coercion “accomplished by force of law and threat of penalty.” Predicting where constitutional jurisprudence is headed — particularly in the establishment clause area — can be as difficult for lawyers as it clearly is for the opposing team to guess where Emmitt Smith is headed. But I think that when we look back at the tapes several years from now, Newdow will be seen as the point where the direction began to change. Brian S. Chilton, a member of the legal team that represented Sandra Banning before the 9th Circuit and the Supreme Court, is a senior counsel in the D.C. office of Foley & Lardner.

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