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.
This requirement means that you have to have a real issue to take to the court, not just one that tees you off, but rather one that affects you in a legal sense. In connection with determining whether there is a "case or controversy" much law has been made in the area of "standing." Standing is wrapped up in all sorts of legal concepts such as "mootness" and "ripeness," all of which must be analyzed to make sure that courts are spending their time solving real issues.
I believe the court granted Newdow's standing on the basis of his allegations that his daughter was attending a school in which the pledge was said. The court proably assumed Newdow had custody or was otherwise empowered to act as her guardian, and thus would have been authorized to act on her behalf, even if the child disagreed.
Subsequent to the 9th circuit decision, however, it became apparent that 1) he did not have custody, 2) he had never been married to the child's mother 3) the mother and child had no problem with the pledge and 4) that he only pled on behalf on the daughter because that was how "the game is played."
The Ninth Circuit has taken a lot of flak over the decision which now appears to have been based on sham pleadings by someone who is mocking the system. As I previously stated, I believe that will be his undoing. The court will likely remand the case for further hearing on the issue of standing at which point Newdow will be hoisted on his own petard, as they say.