Reconceptualizing Fatherhood: the Stakes Involved in Newdow

Last term, in Elk Grove Uniaed School District v. Newdow, the Supreme Court held that a noncustodial father lacked prudential standing to challenge the constitutionality of a policy at his daughter’s school requiring the daily recitation of the Pledge of Allegiance, which includes the words “under God.” The Supreme Court has described standing doctrine as the result of “more than an intuition but less than a rigorous and explicit theory, about the constitutional and prudential limits to the powers of an unelected, unrepresentative judiciary in our kind of government.” The ambiguity of this doctrine has given judges a readily available and manipulable tool for avoiding merit-based decisions, especially in cases that involve prudential standing, as it resembles an “intuition” more so than does constitutional standing. In this Note, I provide a short summary of the portions of the Newdow opinions that address the standing issue. I then argue that decisions such as Newdow have “important symbolic signiacance and both reoect[ ] and contribute[ ] to our cultural understandings of the traditional family roles