Standing In Newdow

In the recent Pledge of Allegiance case, Michael A. Newdow, "an atheist whose daughter" attends a school in which the Pledge is recited each day, filed a lawsuit in federal court arguing that "under God" in the Pledge made the daily exercise a religious endorsement in violation of the Establishment Clause of the First Amendment.

Although Newdow shared physical custody of his daughter with the child's mother, the mother, who does not object to the Pledge, was granted (by the family court order concerning custody matters) the right to "exercise legal control" over important decisions concerning the upbringing of the child.

Nevertheless, Mr. Newdow claimed that he was harmed by the Pledge in his own right. Here is how he described his injury in his oral argument in the case (he is a lawyer who represented himself):

"I am an atheist. I don't believe in God. And every morning my child is asked to stand up, face that flag, put her hand over her heart, and say that her father is wrong."

What do you think? Has Mr. Newdow shown a sufficient concrete injury-in-fact to justify his standing to litigate this Establishment Clause case in federal court?

In Newdow, the Supreme Court distinguished between "Article III standing, which enforces the Constitution's case-or-controversy requirement...and prudential standing, which embodies 'judicially self-imposed limits on the exercise of federal jurisdiction.'" 542 U.S. at 11.

The Court seemed to accept that Mr. Newdow had alleged an actual, concret injury-in-fact, but nevertheless held that he lacked "prudential standing" because of the Court's reluctance "to intervene...[in] the realm of domestic relations."

Of course, the cases are legion in which the Supreme Court has chosen to intervene in the realm of domestic relations. Indeed, we will read many of these "domestic relations" cases later in the semester.

By the way, exactly what is "prudential standing?"