Back in March, I observed that the “under God” crowd could only come out on top in the Pledge case by technical knock-out, by having the case vacated on grounds of standing. Well, they got their TKO.
Jacob Levy’s comments are on point: “On the standing question itself I have no view; I like to see stringent standing requirements, but think that they're pretty hard to make sense of in establishment clause cases, since by definition establishment that doesn't also impair free exercise doesn't commit any easily-cognizable harm against any easily-identified individual.” Exactly. In principle, does it really matter that Michael Newdow was not the custodial parent of a child in school? Is he not, like everyone else in our society, affected by the state’s decision to incorporate religious affirmations in the daily rituals of the public schools?