Newdow's case was dismissed in the lower court based on a ruling that the claim failed to state a cause of action. This is a preliminary ruling based only on the allegations of the complaint. This means the case never went to trial and nothing ever had to be proved, only alleged.
The appellate court (9th Circuit) reviews only the record from the court below. It does not make any findings of fact. Therefore, for the purpose of the appeal it had to take Newdow's allegations as true.
Now, where Newdow got too-clever-by-half was when he started gloating about his victory and said something like "it never was about my daughter, I just had to play the game to get it through the system." By doing that he basically admitted the case was a sham.
The federal courts do not countenance frivolous pleadings. There is even a special rule, Rule 11, addressing sanctions for such conduct.
While most people think the 9th Circuit took a mulligan on the ruling by staying it until further review, I believe they were well within their rights to stay it to consider imposing sanctions for sham pleading.
In other words : "It's all about MEEEEEEEEEEEEE!"
I am in a debate with a liberal claiming to be a Lawyer (he is not)and when I argued that the Dad has no standing because he cannot assert an injury has taken place I was given:
"The whole point you glossed over in your argument is this: There are several kinds of "remedies" you can seek with the courts. There are equitable remedies, TRO's, (temporary restraining orders), temporary and permanent injunctions and actions at law. The "standing" you were talking about doesn't apply to actions at law - only equitable remedies. To the extent BOTH are sought, one can be denied, but the constitutionality itself can STILL be ruled on, which of course, it was. You see the difference?"
"Remember when I asked you if you knew what the "ex parte" part that you quoted in your "legal" argument meant? You never answered and I know why."
"What you don't understand that PART of that legal action filed with the courts was for injunctive relief, i.e. a temporary restraining order which is required before you can get an injunction, temporary or permanent. That was probably denied but the court still went on to decide the case."
"So if "standing" in the way you used the term, was required for the court, then the court would never have ruled (the it did or otherwise). So whether there was the kind of "damage" or "injury" as YOU used the term is irrelevant and off point because the action at law, i.e. the final determination that the "god" part of the pledge being constitutional or unconstitutional can still be ultimately determined...and, as it turns out, it was."
"The court felt that, although the "under god" (which, by the way, was never in the constitution to begin with and was "inserted" in 1954 or thereabouts and the constitution was never, as far as I know, amended to say that) is unconstituional. Why? Sandra Day O'Conner said it best when she said the danger, the "injury" if you will, is that someone who does NOT believe in god will be made uncomfortable with the pressure of having to recite it or be ostracized for not doing so. Now ask yourself who is made to feel uncomfortable by NOT reciting a pledge with "god" in it?"
Please help me- Am I wrong in asserting that the dad needs legal standing through the daughter?
Every article I have read on this constituioanl issue has sated the need for standing throuh a concrete injury.