Thursday, December 5, 2002
Ninth Circuit Confirms Father’s Right to Challenge Pledge
From Staff and Wire Service Reports
The federal appeals court that declared reciting the Pledge of Allegiance in public classrooms to be unconstitutional ruled yesterday that the father who sued on behalf of his daughter had a right to bring the case.
The decision by a three-judge panel of the Ninth U.S. Circuit Court of Appeals puts down a challenge by the girl’s mother and others who said Michael Newdow could not challenge the pledge on behalf of his daughter because he did not have custody of her.
The decision means the San Francisco-based appeals court is free to decide whether to uphold its June ruling barring the pledge from being recited with the words “under God” in public schools in the nine Western states the court covers.
Congress and President Bush condemned the June decision, and the court put the ruling on hold a day after it was issued to decide whether to rehear the case. One issue was whether Newdow had legal standing to sue.
The main issue of whether the court will revisit its pledge decision is still on hold. The court has no deadline to act.
The June ruling by a three-judge panel of the court gained international attention. It said that using the term “under God” in the pledge was an unconstitutional government endorsement of religion.
The lawsuit briefly detoured into a parental rights case between Newdow, an atheist, and his 8-year-old child’s mother, Sandra Banning of Elk Grove. Banning, who has full custody of the child, said her daughter is not harmed by reciting the pledge and is not opposed to God.
After the court issued its ruling, Banning filed for leave to intervene on the question of Newdow’s standing to maintain his Establishment Clause challenge on his daughter’s behalf. She attached a copy of a Feb. 6, 2002 superior court custody order awarding Banning “sole legal custody” of the child.
But the order also provided that both parents are to consult on “substantial decisions” relating to non-emergency major medical care, dental, optometry, psychological and educational needs.
Newdow later moved for joint custody. Trial on that matter is pending. Meanwhile, the state trial court enjoined Newdow from pleading his daughter as an unnamed party or representing her as a “next friend” in the continuing pledge lawsuit.
In the Ninth Circuit, Newdow no longer claimed to represent his child, but instead asserted that he retained standing in his own right as a parent to challenge what he called unconstitutional state actionórequiring her to recite the pledge with the words “under God”—affecting his child while she attends public school in the Elk Grove Unified School District.
Writing for the three-judge panel, Senior Judge Alfred Goodwin noted that Banning’s sole custody order left Newdow a role in the girl’s life.
He also said Banning had “no power, even as sole legal custodian, to insist that her child be subjected to unconstitutional state action.”
“Neither Banning’s personal opinion regarding the Constitution nor her state court award of legal custody is determinative of Newdow’s legal rights to protect his own interests,” Goodwin wrote.
Banning’s attorney, Stephen Parrish, called the ruling disappointing.
Copyright 2002, Metropolitan News Company