Appeals court says father can challenge Pledge of Allegiance

AP, Dec. 4, 2002
http://www.sfgate.com/
DAVID KRAVETS, Associated Press Writer

The federal appeals court that declared the Pledge of Allegiance an unconstitutional endorsement of religion when recited in public classrooms ruled Wednesday that the atheist father who sued on behalf of his daughter had a right to bring the case.

The decision by a three-judge panel of the 9th 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 the Elk Grove Unified School District third-grader.

The court’s decision means the San Francisco-based appellate court is free to decide whether to uphold Newdow’s successful challenge to the pledge.

After the court said in June that the pledge cannot be recited in schools, the court put its decision on hold to decide whether to rehear the case. One issue was whether Newdow had legal standing to sue.

But the main issue of whether the court will revisit its pledge decision is still on hold. The court has no deadline to act.

“The standing issue has nothing to do whether the Pledge of Allegiance is unconstitutional,” Newdow said Wednesday.

The case gained international attention when a three-judge circuit panel ruled that Newdow’s daughter should not be subjected to the term “under God” being recited in public classrooms. The federal Constitution, the court said, prohibited public schools or other governmental entities from endorsing religion.

A day later, after Congress and President Bush condemned the decision, the court put the ruling on hold to allow for fresh challenges.

Had the court not done so, 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.

Newdow, of Sacramento, challenged a 1954 decision by Congress to add the words “under God” to the pledge. But the lawsuit briefly detoured into a parental rights case between Newdow and his 8-year-old child’s mother, Sandra Banning of Elk Grove.

In response to the court’s original ruling, Banning said her daughter is not harmed by reciting the pledge and is not opposed to God. Banning has full custody of the child.

The appeals court Wednesday said Newdow doesn’t lose his legal status as a father to challenge the constitutionality of his child’s education because he doesn’t have custody.

“While Newdow cannot expect the entire community surrounding his daughter to participate in, let alone agree with, his choice of atheism and his daughter’s exposure to his views, he can expect to be free from the government’s endorsing a particular view of religion and unconstitutionally indoctrinating his impressionable young daughter on a daily basis in that official view,” Judge Alfred T. Goodwin wrote.

Goodwin was the author of the June decision.

“That’s disappointing. We don’t agree with that ruling,” said Banning’s attorney, Stephen Parrish.

Judge Ferdinand F. Fernandez, the lone dissenter in the original pledge decision, wrote separately Wednesday and said Newdow had standing to sue. Fernandez, an appointee of the first President Bush, cautioned that the nation’s largest federal appeals court is still privately deciding whether to rehear the case or let the ruling stand.

Still, he insisted again that Goodwin, a Nixon appointee, and Judge Stephen Reinhardt, a Carter appointee, wrongly concluded the pledge was an unconstitutional endorsement of religion.

“Despite the order’s allusions to the merits of the controversy, we decide nothing but that narrow standing issue,” Fernandez wrote.

In June, Goodwin and Reinhardt declared that the phrase “under God” amounts to a government endorsement of religion in violation of the Constitution’s Establishment Clause, which requires a separation of church and state.

The case is Newdow v. Congress, 00-16423.

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