The historic challenge to the words “under God” in the Pledge of Allegiance might never have reached the Supreme Court if not for a collision of faith between two parents — one an atheist, the other a born-again Christian.
Normally, the personal sagas of the parties in a Supreme Court case are just a footnote to the constitutional principles. But the clash between the parents threatens to derail the entire case, which will be heard by the high court on Wednesday.
The case was brought by Michael Newdow, an atheist who does not want his 9-year-old daughter exposed to the phrase “under God,” which Congress inserted in 1954 in a Cold War expression of abhorrence of godless communism.
The girl’s mother, Sandra Banning, is a born-again Christian locked in a bitter custody dispute with Newdow, whom she never married. Backed by former Whitewater prosecutor Kenneth Starr, she has told the justices that her daughter has no objection to reciting “under God” in school each day.
Should the justices wish to sidestep the church-and-state issues, the custody quarrel between the former lovers presents them with an easy out. They may just decide that Newdow, because he did not have custody at the time, could not sue without the mother’s consent, and dismiss the case outright.
“This custody issue could be a stumbling block on the way to getting an answer,” said Douglas Kmiec, a constitutional law expert at the Pepperdine University School of Law. “It’s clear the law gives Newdow a right as a parent to instruct his daughter in what he believes about the world, but what the law doesn’t give a parent is the right to unilaterally veto what the other parent believes about the world.”
In an explosive ruling in June 2002, the San Francisco-based 9th U.S. Circuit Court of Appeals, the nation’s most liberal appellate court, declared that reciting the pledge in public schools in unconstitutional because the words “under God” amount to an endorsement of religion.
The ruling spun heads from California to Washington. If upheld, the ruling would overturn 50 years of common practice in America’s schools.
But last October, the Supreme Court justices announced that they wanted to hear more about whether Newdow had legal standing — that is, the right to sue on behalf of his daughter.
“How weird it is, that standing on a case may ultimately determine the pledge case, that it depends on quirky domestic relations,” said Vikram Amar, a Hastings College of the Law scholar.
The acrimony between Banning and Newdow is intense. They could not even agree whether the fourth-grader in the Elk Grove school district near Sacramento could attend the Supreme Court arguments.
Newdow, a lawyer and a physician, wanted his daughter to watch as he argues the case himself. But a family court judge ruled against him, saying she could be harmed hearing Newdow tell the justices about the custody dispute.
Banning, for her part, worried that it would be dangerous for her to attend, since Newdow has received death threats.
Banning scoffs at the idea that her daughter is harmed by hearing the words “under God” in school. “She continues to recite it today. She doesn’t object to it,” Banning said.
Newdow says that it does not matter what his daughter thinks — “She’s 9 years old” — and that an important principle is at stake. “The next thing they’ll put in the pledge is that we’re `one nation, under Jesus,”‘ he said.
Newdow predicted the Supreme Court would rule in his favor and called the issue of legal standing “a sideshow.”
Banning, 44, and Newdow, 50, have little in common beyond their daughter.
Banning, who regularly takes her daughter to the Calvary Chapel of Laguna Creek, said she became romantically involved with Newdow after she divorced another man — a brief period when she “lost sight” of her faith.
“At that time in my life, I wasn’t participating with my faith or going to church. As a result, in our dating relationship, I did get pregnant,” said Banning, who does clerical work at home.
Banning said Newdow had no physical custody when he filed the pledge case in federal court in 2000. By Newdow’s calculation, he now has about 30 percent custody.
Newdow said he studied to became a doctor at the University of California at Los Angeles, to help people, then got a law degree at the University of Michigan so he could sue doctors. He made a fortune in medicine. And now his legal battles consume most of his time.
Newdow also challenged — unsuccessfully — the religious invocation at the inauguration of President Bush. He is also challenging a California law requiring him to pay Banning’s legal fees in their custody battle — more than $300,000 in all.
As for his daughter, Newdow said he was partially stripped of custody rights because when the girl was 5, he let her enter a bathroom by herself at an airport.
“I lost custody because I let my daughter go pee!” he exclaimed. “When she came out, I told her she needed to tell her mom, because she would be proud.”
The girl’s mother said the child was put in danger.