Michael Newdow is scheduled to argue on Wednesday that the Pledge of Allegiance is unconstitutional. I hope that he loses this turkey on the merits, thereby sparing us a repeat of this spectacle a few years from now. However, there is a decent chance that he will lose on a more technical basis: as a non-custodial parent, he has no standing to assert any claims on behalf of his daughter.

If the Supreme Court agrees that Newdow lacks standing to bring the case, his custody fight with Sandra Banning, the mother of his child, is likely to prevent the court from even addressing whether “under God” should be excised from the pledge.

Newdow says the argument doesn’t wash. “Do I lose harm because of a custody order?”

Um, yeah, you do, Mikey. Mikey doesn’t like the current arrangement whcih makes Sandra Banning the custodial parent, and he’s challenging that in a separate case. That’s fine, but until and unless that arrangement changes, Sandra Banning remains the custodial parent. As the custodial parent, she has the right to send her daughter to any school she wants, including a religious fundamentalist school, over Newdow’s objection. So yes, Mikey, you do lose “harm,” i.e., judicially cognizable harm, or standing. As to the legal status of any actual harm a non-custodial parent may experience as the result of a custodial parent making child-rearing decisions with which the non-custodial parent may disagree, I refer the reader to the title of this blog.

That said, my prediction, which is worth every penny you paid for it, is that the court will rule that Newdow does have standing to challenge the pledge, not in his legally irrelevant role as a non-custodial father, but in his role as a taxpayer. Generally, taxpayers have standing only to challenge illegal or unconstitutional taxes, not illegal or unconstitutional expenditures of a lawfully collected tax. However, courts have carved out a handy-dandy exception for the Establishment Clause because … well, just because. Also, unlike real tax challenges, courts have refused to impose a de minimis rule on the amount of the expenditure, or even dismiss cases where the allegedly unconstitutional expenditure resulted in a net savings to the taxpayer. (Take, for example, the case challenging school vouchers). If Newdow can persuade four Justices to rule with a straight face that reciting the Pledge in school costs money, he will have standing to challenge the tax, and Justice Scalia, having recused himself from the case, won’t even be around to fisk them.

“I will win because I’m right,” he says quietly. “I have standing, and this thing violates the Establishment Clause (of the U.S. Constitution). The question is, will it be 8 to nothing or 6 to 2.”

Memo to Newdow: you aren’t right, and you probably won’t win, but more importantly than that, no one wins “because they are right.” As to your prediction of the outcome, well, we’ll just see about that. Mine is that Justices Rehnquist, Thomas, Kennedy and O’Connor will uphold the Pledge, and Justice Breyer probably will as well. If I’m right about Breyer, Newdow loses. If I’m wrong about Breyer, Newdow “wins” by a tie. That would result in a circuit split, which would virtually guarantee that a similar challenge would find its way back to the Supreme Court a year or two down the road, only this time Scalia would not need to recuse himself. For Newdow to win, I’d have to be wrong not only about Breyer but also about O’Connor and/or Kennedy. Justice O’Connor is by far the flakiest of the bunch, but thus far, she has remained fairly consistent in applying a common sense reading of the Establishment Clause. If she does flip on this one, as she did on reverse discrimination last year, I think we can say she has completely jumped the shark.

Stay tuned.

UPDATE: Michael Williams has more. He’s not too impressed with either Newdow or Banning’s family planning methods, and neither am I.