An Allegiance to Dissent

Man’s Challenge to ‘Under God’ Is One of Many — Including a Pivotal Custody Battle Over Daughter

California atheist Michael Newdow has a date with the Supreme Court, which will hear his case against the phrase “under God” in the Pledge of Allegiance early next year. And thanks to a ruling by the court yesterday, he will get to represent himself.

In the meantime, he is expected once a week at co-parenting class.

A Sacramento judge wants Newdow to get along with his ex-girlfriend, who has primary custody of their 9-year-old daughter — whose exposure to mandatory classroom recitations of the pledge prompted Newdow’s lawsuit. The judge has said that Newdow’s increased access to his child depends on it.

But in his view, the judge is enforcing an “egregious, unconstitutional” system of family law. “This whole thing is a crock of dung,” he told the counselor during a Nov. 5 session.

“I can’t feign,” he said, recalling the incident in an interview. “I couldn’t do it. I couldn’t go in and not say anything.”

The custody dispute, though little explored, is crucial to the pledge case: Newdow claimed standing to challenge “under God” based on his status as a parent of a schoolchild. And it offers a window on the personality driving the pledge case, which is only one of four court battles that Newdow is currently waging.

The Rev. Dr. Michael A. Newdow, Esq. — physician, lawyer and founder of the First Amendmist Church of True Science — has a restless, uncompromising mind, a mind that dissents radically from many widely accepted aspects of American life, from the pledge to family law to gender-specific pronouns in the English language. In his own writing, Newdow uses “ree” instead of “he” or “she,” and “rees” instead of “his” or “her.”

To supporters, Newdow is living proof that, with enough determination, you can fight City Hall. “He’s an underdog who’s taken a case most people thought was hopeless and taken it to the point where, at a minimum, he’s got a chance” at the Supreme Court, said Barry W. Lynn, executive director of Americans United for Separation of Church and State, a Washington-based nonprofit that has offered informal advice to Newdow.

To his detractors, however, Newdow, 50, is an out-of-control epitome of the Me Generation. Rather than vindicating constitutional principle, federal appeals judge Diarmuid O’Scannlain has written, Newdow is seeking “a right to be fastidiously self-indulgent and intolerant.”

Newdow’s claim of parental standing to challenge “under God” has been questioned by his ex-girlfriend, Sandra Banning, and others, and the Supreme Court has decided to consider it along with the larger question of whether the phrase violates the constitutional ban on state-sponsored religion. If the court finds that Newdow lacks standing, it can throw out the case without ruling on the pledge.

So, for all his professional titles, Newdow’s case may hinge on what the court makes of his claim to a much humbler appellation: Daddy.

‘I’m a Wonderful Father’

Fatherhood is not a role Newdow initially relished. He has asserted in court that the child was conceived when Banning forced him to have sex during a trip to Yosemite National Park.

Judge James M. Mize, who is overseeing the custody case in Sacramento County Superior Court, called this “date rape” contention “incredibly disingenuous.” Still, Newdow has joined a movement against “forced fatherhood” led by the little-known National Center for Men. Its Web site says that Newdow has volunteered to represent anyone in California who wants to file a lawsuit based on being tricked or forced into fathering a child.

Newdow spent relatively little time with the child during her first four years as he maintained legal residence in Florida and pursued his career as an itinerant emergency room physician, practicing medicine on a contract basis in Los Angeles and elsewhere across the country.

Banning, 44, said in an interview that Newdow tried to keep his paternity a secret at first, sometimes telling acquaintances, “This is my friend Sandy and her daughter.”

“That led to a big argument,” Banning recalled. “I said, ‘What are you going to do when this girl starts calling you Daddy?’ “

Newdow said the notion that he tried to deny being a father is “poppycock.”

“I knew she was well taken care of by the mother, so I went out and made money,” Newdow said. He said he had since developed a close relationship with the girl, an assertion that others who know him confirm. “I’m a wonderful father, and my child loves me,” he said.

Newdow provided houses for Banning and their daughter, first in Winston-Salem, N.C., and later in Sacramento, though in 1999 he evicted them on 30 days’ notice from the Sacramento house after he and Banning quarreled.

At that point, Newdow suggested to Banning that their daughter, then 5, live with her and attend kindergarten in Sacramento for half of each month, and live with him and attend kindergarten in Florida for the other half.

Newdow said this arrangement would allow their daughter to take advantage of superior opportunities to learn Spanish; Banning said Newdow wanted the girl to live with him so he could establish standing to challenge the pledge in federal court in Florida. His first attempt at a Florida suit was dismissed for lack of standing in December 1998.

“I do believe he loves his daughter, as much as Michael Newdow can love anyone,” Banning said. “And she loves him. But she’s a great vehicle for him to accomplish his other things.”

Banning obtained a court order giving her custody of the child pending mandatory mediation. On Feb. 6, 2002, Mize awarded her permanent sole legal custody. Newdow was given visitation rights and the right to consult on the child’s “health, education and welfare,” but when the parents disagree, Banning’s decisions control.

On Sept. 11, 2003, after a 10-day custody trial that Newdow had demanded, Mize modified the order slightly, giving him nominal legal custody and some additional visitation time but leaving Banning veto authority over major decisions — and Newdow still bitter.

Each month, his child-support checks arrive with the notation “under protest,” Banning said.

Newdow’s main argument in the case is that the entire family law system is wrongly premised on “the best interests of the child,” when what should really count is what he says is the parents’ constitutional right to equal time.

“These parents — who were good friends up until this litigation was begun — would still be on fine terms if it were not for the laws of the State of California,” Newdow wrote in a brief to Mize in July.

But these arguments have made little headway. “The concern in this court is not whether your life is ruined or not,” Mize told him. “I’m concerned about the child’s future.” But Newdow says he plans to resume this fight after the pledge case.

Newdow’s daughter, now a fourth-grader, has apparently weathered the storm between her parents. She got straight A’s on her most recent report card, Banning said, and participates in gymnastics and choir.

Meanwhile, Newdow’s costs mount. For the past three years, he has all but ceased working to pursue his court cases. In addition to sacrificing that income, he has been ordered to pay $300,000 of Banning’s attorney fees because Newdow is wealthier than Banning and Mize regards him as responsible for prolonging the litigation. The money would have to come from his savings.

Newdow has filed a separate lawsuit against this order, calling it a violation of his constitutional right not to be forced to finance speech he disagrees with. The case is pending in a California appeals court.

“I had $3 million, but I’m going to end up bankrupt,” he said.

Taking On the Pledge

The pledge lawsuit, dismissed in Florida, was reborn in March 2000, after Banning enrolled her daughter in a public school in the Sacramento suburb of Elk Grove. Filing in U.S. District Court for the Eastern District of California, Newdow named himself and his daughter as plaintiffs.

The district judge dismissed the case in two paragraphs. Newdow appealed to the U.S. Court of Appeals for the 9th Circuit, which also initially treated his case as routine. The court clerk channeled it into a portion of the docket reserved for cases that raise no significant legal issues and can be disposed of without a written opinion.

But Newdow exercised his right to object to that assignment and was eventually granted permission to argue the case himself before a three-judge panel. To the astonishment of virtually the entire country, the panel ruled 2 to 1 in his favor in June 2002.

After the decision, Banning, represented by Washington lawyers, told the 9th Circuit what Newdow had not mentioned: that she had sole legal custody of the child and that she did not object to the Pledge of Allegiance.

On Sept. 25, 2002, Mize reinforced Banning’s claim, ordering Newdow not to involve his daughter in the lawsuit again without Banning’s consent. Though he had previously permitted the girl to attend Newdow’s oral argument before the 9th Circuit, Mize now cited the risk to the girl’s “health and safety” from the public backlash against her father.

That Dec. 4, the 9th Circuit ruled against Banning, interpreting California law to give even noncustodial parents a legally significant interest in their children’s upbringing.

The pledge conveys the message to Newdow’s daughter that “her father’s beliefs are those of an outsider, and necessarily inferior to what she is exposed to in the classroom,” the 9th Circuit ruled. Thus, Newdow has a claim whether his daughter is named in the case or not.

Newdow graduated from law school at the University of Michigan in 1988 but was admitted to the California bar only last year. That is why he had to ask the Supreme Court for special permission to argue his own case.

“I do feel spread thin,” Newdow said. “With the damned family law case, I haven’t had much time to work on the pledge case.” Still, he said he saw no reason to step aside in favor of a more experienced advocate, as some supporters have privately urged. “I think I can do it myself. You need the perspective of an atheist,” he said.

Americans United for Separation of Church and State had asked that it be allowed 15 minutes at oral argument, separate from Newdow, to present the case against “under God,” but the court denied that request yesterday.

“It’s hard to argue with Newdow’s success” at the 9th Circuit, Lynn said, but he added: “We want[ed] to make sure that every nuance is addressed at oral argument.” Lynn acknowledged it “would be frustrating” if Newdow’s argument branched off into his “agenda about family law,” as he sometimes does in media interviews.

Banning, who has probably spent more time in court with Newdow than anyone else, is not sure how he will fare with the justices.

“He can be very easily sidetracked,” she said. “They could probably have a good time with him if they want to. But I don’t know, he might just surprise us. He’s got it this far.”

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