Father urges appeals court to let Pledge ruling stand

David Kravets The Associated Press
Sunday September 29, 2002

SAN FRANCISCO — Michael Newdow, the California father who convinced a federal appeals court to declare the Pledge of Allegiance an unconstitutional endorsement of religion when recited in public classrooms, urged that court Friday to let its June 26 ruling stand. 

Newdow, an atheist from Sacramento challenged the pledge on grounds that his daughter should not be subjected to the term “under God” being recited in public classrooms. Newdow’s briefs are in response to a June 27 ruling by the court in which it put its decision on hold to allow for fresh appeals. 

Had the court not placed the ruling in a legal limbo, the decision would have stopped public schoolchildren from reciting the pledge in the nine western states that the nation’s largest appeals court covers. Those states are Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington. 

The child’s mother, the Elk Grove Unified School District, the federal government and California have also filed briefs with the court, urging the judges to follow an often-used court procedure and reverse the decision with either three or 11 judges. 

There are no timelines for the court to act on the ruling that was condemned by President Bush and Congress. Legal scholars suggest a case could be made both ways on whether the ruling should stand. 

The case began as a challenge to a 1954 decision by Congress to add the words “under God” to the pledge. But the lawsuit has sidestepped into a parental rights case over a custody dispute between Newdow and his 8-year-old child’s mother, Sandra Banning of Elk Grove. 

In response to the ruling, Banning has asserted to the court that her daughter is not harmed by reciting the pledge and is not opposed to God. Banning, who now has full custody of the child, is urging the court to consider whether Newdow even had legal standing to bring the case on behalf of his daughter. 

Newdow, however, wrote to the court that his daughter told him that she hoped he won his case. 

Newdow told the court Friday he does have the right to sue on grounds he doesn’t think his daughter should be subjected to the pledge, even if he doesn’t have custody. He says he doesn’t lose his legal status as a father just because he doesn’t have custody. 

While he is also urging the court to intervene in his custody dispute, he told the appeals court Friday that if Banning likes the pledge so much she can file her own lawsuit. 

“Banning, if she feels it necessary, can certainly file her own lawsuit to have the words ’under God’ kept in the Pledge of Allegiance,” Newdow wrote. “In this action, however, she has no role to play.” 

California, the federal government and the school district where the third-grader attends glommed onto Banning’s argument after she first publicized it July 11. 

The 9th Circuit has never ruled whether Newdow had standing.