The girl at the center of a constitutional challenge to reciting the Pledge of Allegiance in public schools won’t be able to watch her father argue the case before the U.S. Supreme Court, a California state judge ruled Monday.
But the judge said that the custody dispute that he is involved in with the girl’s mother, Sandra Banning, would be discussed before the high court and that it would not be appropriate for the girl to hear those arguments.
“It would be dangerous and not good for the child,” Mize said.
California law prohibits children from watching court custody proceedings in which their parents are involved. Newdow doesn’t have full custody of the girl.
The 9th U.S. Circuit Court of Appeals ruled in June 2002 that the Pledge of Allegiance was unconstitutional when recited in public schools because of the words “under God.” Newdow, a doctor and lawyer, sued on behalf of the girl, who is now a fourth grader in Elk Grove.
Banning, who will be represented in the Supreme Court case by Washington lawyer Kenneth Starr, maintains that her daughter does not mind reciting the pledge. Banning argues that because of the custody dispute, Newdow did not have the right to sue on his daughter’s behalf because he did it without Banning’s consent.
Those arguments have given the Supreme Court a legal basis to dismiss the case, if the justices so choose, based on allegations that Newdow did not having the legal standing to have brought it in the first place. Newdow says that as the girl’s biological father, he does have standing — an argument he will have to make to the Supreme Court.
Newdow, of Sacramento, told the judge watching him argue before the nation’s highest court could turn out to be a wonderful day for his daughter. He has about 30 percent custody of her and is fighting for 50 percent.
Still, outside of court, Newdow said he was hesitant to bring his daughter to the hearing because of the custody dispute.
“I don’t know whether I would have taken her even if I could have,” he said.
Banning’s California attorney, Dianne Fetzer, agreed with the ruling.
“I just don’t think it’s appropriate for her to be there,” she told the judge. Banning said after the hearing she wanted the Supreme Court to either dismiss the case or reverse the federal appeals court’s decision.
In declaring the pledge’s reference to God unconstitutional, the 9th Circuit said it violated the First Amendment as well as Supreme Court precedents. The Supreme Court has already ruled that school children cannot be required to recite the pledge.
God was not part of the original pledge written in 1892. “Under God” was inserted by Congress as a wartime patriotic tribute in 1954, when the world had moved from hot war to cold and U.S. religious leaders were sermonizing against “godless communists.”
The 9th Circuit said Newdow had the legal right to sue on his daughter’s behalf.
The custody case is Banning v. Newdow, 99FL0342.
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