The same federal appellate panel that ruled against the Pledge of Allegiance last summer concluded last week that the father who challenged the pledge on behalf of his daughter, even though he does not have custody of the child, nonetheless has the right to press his case.
The panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, caused a firestorm in June by ruling 2-1 that the pledge’s inclusion of the words “under God” was an unconstitutional government establishment of religion. The court delayed the effect of its ruling to allow for appeals. But if the decision ever does take effect, public schools in the nine states in the 9th Circuit will be barred from leading the pledge.
Dr. Michael A. Newdow, a California physician who is an atheist, challenged the pledge on behalf of his daughter, who has not been named in court papers. The defendants are the 52,500- student Elk Grove Unified School District, the state of California, the U.S. Congress, and President Bush.
After the 9th Circuit’s June 26 ruling, the 8- year-old girl’s mother, Sandra Banning, came forward to argue that her daughter had no religious objections to reciting the pledge at school. Dr. Newdow and Ms. Banning have never been married, and they had an informal custody arrangement for their daughter until February, when a state court awarded Ms. Banning sole legal custody.
In September, a California Superior Court judge barred Dr. Newdow from naming his daughter in the pledge lawsuit.
Full Court Is Next
The original 9th Circuit panel’s Dec. 4 ruling stated unanimously that Dr. Newdow has standing even as a noncustodial parent to challenge his daughter’s exposure to what he views as unconstitutional government conduct.
“We hold that Banning has no power, even as sole legal custodian, to insist that her child be subjected to unconstitutional state action,” said the ruling by U.S. Circuit Judge Alfred T. Goodwin. He wrote the original opinion against the constitutionality of the pledge as currently worded and reaffirmed that stance last week.
U.S. Circuit Judge Ferdinand F. Fernandez, who dissented from the ruling against the pledge, wrote a concurrence last week to emphasize that he agreed with his fellow panel members only on the issue of legal standing.
The next step is likely to be a rehearing on some or all of the issues involved before a larger panel of 9th Circuit judges.
A version of this article appeared in the December 11, 2002 edition of Education Week as Appeals Court Says Pledge Foe Has Right to Sue