Newdow's Standing Plus Some Comments

As the Court pointed out, Mr. Newdow based his standing not as the legal representative of his daughter, but as "a noncustodial parent" who believed that daily recitation of the Pledge in his daughter's school imposed a concrete injury-in-fact on Mr. Newdow as a parent. In oral argument, here is how Mr. Newdow, who represented himself, explained his personal injury:

I am an atheist. I don't believe in God. And every school 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? Is this a concrete injury for purposes of Art. III standing?

Suppose the Pledge said "one Nation, which does not recognize the existence of God or any other myth"--would a noncustodial parent who is a devout Christian or Jew have standing to challenge daily recitation of this atheistic pledge?

Why do you think the liberals on the Court, who usually have a liberal view of standing, took such a narrow view in this case?

Justice Scalia had recused himself from this case. What would have been the effect of a 4-4 vote on the merits? When was this case decided?

Now some questions and comments:

1. Notice that Justice O'Connor recognizes some kind of "ceremonial deism" that somehow passes muster under the endorsement test. Do you agree? What might an atheist like Mr. Newdow argue in reply?

2. Notice also Justice Thomas' discussion of two different types of coercion under the "coercion test": (1) real or actual coercion--coercion "accomplished by force of law and threat of penalty;" and (2) soft or constructive coercion, as in Lee v. Weisman, amounting to peer pressure or psychological pressure to conform ("Roberta Flack killing me softly" non-coercive coercion). If the former is the real coercion test, is the latter nothing more than the endorsement test adorned with a fig leaf?

3. Again, notice Justice Thomas discussion of incorporation and his call to "consider more fully the difficult questions whether and how the Establishment Clause applies against the States."