The Michael Newdow Case: Standing Under the Law June 11, 2010

The Michael Newdow Case: Standing Under the Law

According to an American Humanist Association press release,

Michael Newdow filed a petition with the U.S. Court of Appeals for the District of Columbia Circuit requesting a panel rehearing or for rehearing en banc in the case of Newdow v. Roberts. The case challenges the oath administrator’s addition of the phrase “so help me God” to the constitutionally prescribed presidential oath and the inclusion of sectarian prayers in the invocation and benediction of the 2009 inauguration of President Obama and the 2013 and 2017 ceremonies.

U.S. District Court Judge Reggie B. Walton had ruled on March 12, 2009 that all plaintiffs in Newdow v. Roberts lacked standing to pursue such cases. And on May 7, 2010, a three-judge panel issued an order affirming Judge Walton’s order dismissing the case for lack of standing.

In English, Newdow is requesting a rehearing on his denial for a rehearing.

Now, some schooling on an unsexy part of US law:

In order to bring a law suit in the United States, three things must be true: (1) the plaintiff must have standing, (2) the case must be ripe for review, and (3) the case must not be moot.  If any of those three things are not true, the case is dismissed.

The Newdow case has already been dismissed once for lack of standing. 

Standing also has three requirements. A person bringing a suit challenging the constitutionality of a law must demonstrate they have suffered an ‘injury in fact.’  Plaintiff must also show the defendant, and not an intervening third party, is harming him.  Finally, plaintiff must prove that a favorable decision will solve their injury.  In legal terms, standing requires (1) injury, (2) causation, and (3) redressability. The Newdow case was dismissed for lack of standing because Newdow has been unable to prove injury and redressability.  In other words, the court is unable to answer “what is Newdow’s injury here”?  (The pain in his ears by hearing that toxic word God?)  Also, if he wins his case, will his injury be over?

Over the course of my brief time blogging here, I’ve become quite the gambler. I’ll gamble once again on this case:

Newdow has no standing, and the case will again be dismissed. (My apologies for disagreeing with Mr. Ritter of AHA — I’ve worked with him and he is a great attorney and almost always right). The only people with clear and unarguable standing in this case are the elected officials themselves.

Do I believe that the words “so help me God” included in a presidential oath and the inclusion of prayers during a presidential inauguration violate the Establishment Clause?  Abso-freakin-lutely.  But I also don’t see it getting struck down until an elected president challenges it before his (or HER!) inauguration.

And I’m not holding my breath for that.

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  • My argument for both the injury and redressability dimensions is thus:

    An explicit endorsement of any religion or group of religions by an elected official in an official capacity is socially damaging to the outsiders of that religion or group of religions. The attitude that it foments can cause us, as a group, monetary damages (arising from difficulties with jobs) and possibly physical damages (though it seems that actual violence against atheists seems to be at a minimum in most regions). Certainly, it costs certain billboard companies money when they have to replace our ads.

    This can be redressed by a simple change in the way things are done. If our government stops officially endorsing any individual religions or groups of religions over others, then that would theoretically have a ripple effect into the rest of our culture and have a positive impact on the damages mentioned in the previous paragraph.

  • Hitch

    I find it interesting how the standing question is used to dismiss 1st amendment cases. I cannot but help that it’s a frivolous use of standing.

    Every citizen has standing with respect to an establishment case, the injury is that establishment was allowed to happen when it is unconstitutional, and the redress is the removal and prohibition of the action that is deemed to be establishment.

    In fact a frivolous standing dismissal seems to be potentially violating the “redress of grievance” part of the 1st amendment.

  • I’m a little confused. I blame my lack of fluency in legalese. President Obama (and previous presidents) went through an inauguration that was unconstitutional. Isn’t it his job to uphold the principles and letter of the Constitution? What do you do to a President who goes against the founding principles of your nation? If he has acted unlawfully then shouldn’t he be impeached?

    The question of whether or not the Establishment Clause has been violated and whether or not doing so is unlawful. Is the establishment of a religion being promoted during the inauguration? Are public funds spent on promoting a religious ceremony? Is preference being given to one religion over another religion or irreligion? I think that can be demonstrated. If so then a proportion of federal taxation (no matter how small) has been spent on promoting a religion in direct contradiction to the First Amendment and the plaintiff has suffered a financial loss in terms of tax paid out.

    Of course the sum has to be directly insignificant but I’m not sure if that matters at all.

  • spacestudent

    Can’t he just argue that he won’t be able to run for president if the phrase stays? Going against his religion and all that about ‘no religious test’ and so on. I mean, wouldn’t that qualify as hurting his prospects for future job-markets and removing the phrase would address this problem?

    Since the phrase reduces his possible job market, the phrase is the cause and removing it would fix the problem, isn’t this a ‘standing’?

    Anyway, I see that the Law is just as silly as it has always been…

  • Bob

    Newdow has lost other cases on the basis of ‘no standing,’ including his suit against the inclusion of ‘under God’ in the Pledge of Allegiance.

    It seems ‘no standing’ is becoming a convenient excuse.

  • Bob,

    Newdow didn’t have standing in the pledge of allegiance case because he didn’t have custody of his daughter. Had he been the custodial parent at that time, he probably would not have lost on that point.

    The purpose of the standing requirement is to keep down the number of cases filed each year. Also, it’s silly to think someone should be able to sue for the rights of another person. If I’m wronged, *I* get to sue and be redressed– you don’t.

  • JulietEcho

    Standing is a requirement for a good reason, as Brittany points out. Unfortunately, it also allows for a convenient excuse to dismiss first amendment cases, as others have pointed out. I think the taxes argument is the best in cases like this – however tiny the amount is, tax dollars are essentially being spent on endorsing religion when phrases like this are used at government events (and think about adding up all the time it takes for so many public school students to say “under God” every day, every school-year, when taxes are what fund public schools).

  • Brittany,

    (I feel like I should call you Ms. Meyer, since you’re a lawyer and all.)

    I really appreciate the posts you’ve been writing. It’s very informative to read posts by someone who can bring her education in law to the table.

  • I too enjoyed reading the technical points of the law in this post. I don’t have a great deal of legal knowledge, but really would like to understand more about the law when I read about these cases regarding separation of church and state. Thanks for the help.

  • Brian Macker

    Of course he has standing: The Subjects of the Constitution … and of course they will rule against him in this regard.

  • Brian,

    That document was extremely interesting, especially pages 1237-1239. Using the reasoning found there, I agree– anyone has standing to make a facial challenge to a statute– (I don’t even know if there’s a statute on inaugurations) However, I also think you are correct in that most cases are taken as applied (as I’d argue they should be) and he’ll be ruled against.

  • Every American has standing when the President fails to take the proper Presidential Oath as stated in the US Constitution verbatim. Adding to the Oath violates and invalidates the Oath. The redress will be that the President read the proper Oath as directed by the US Constitution.

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