Custody and the Pledge of Allegiance

The grant of joint custody to a parent may give him standing to challenge the Pledge of Allegiance. Michael Newdow, who lost custody of his daughter in February 2002, has regained partial legal custody, which may increase the chances that the U.S. Supreme Court will take up his controversial First Amendment challenge to the words “under God” in the Pledge. The change in custody is just the latest unusual twist in the Pledge cases, which Newdow, who is licensed as both a physician and a lawyer, is handling pro se.

Background

The appeal stems from a series of rulings by the 9th U.S. Circuit Court of Appeals. In June 2002, a three-judge panel agreed with Newdow that the Pledge violates the establishment clause of the First Amendment because of the 1954 federal law that added the words “under God” to its text. After the ruling, the girl's mother, Sandra Banning, notified the appeals court that Newdow did not have legal custody of his daughter and that, as the sole custodial parent, she had no objection to her daughter reciting the Pledge with its reference to God. Backing the mother, the Bush Administration filed a supplemental brief arguing that Newdow lacked standing to mount his challenge.

The 9th Circuit then ruled on the standing question. The three-judge panel held that Newdow, in spite of his noncustodial status, had standing in his own right to challenge an “unconstitutional government action affecting his child.” On the merits, the panel later amended its first decision to limit its finding of unconstitutionality to reciting the Pledge in schools – not the wording of the Pledge in general. This narrowing of the original ruling triggered Newdow's appeal to the Supreme Court, while the federal government and the school board challenged the notion that the Pledge was unconstitutional at all.

The Pledge cases – United States v. Newdow, No. 02-1574, Elk Grove Unified School District v. Newdow, No. 02-1624, and Newdow v. United States, No. 03-7 – are on the agenda for the Court's Sept. 29 private conference. Lawyers in the case say it is unlikely that the custody order will be finalized in time for the Court conference. Newdow, however, has already written to the Court to inform the justices of the development and to suggest that standing is no longer a viable issue.

Newdow's adversaries at the Supreme Court – including the government, led by Solicitor General Theodore Olson, and former Solicitor General Kenneth Starr, who represents Banning before the Supreme Court – relied heavily on Newdow's lack of custody in arguing to the Supreme Court that he did not have standing to challenge the recitation of the Pledge in public schools on behalf of his daughter.

Conclusion

Many experts have speculated in recent weeks that the Supreme Court would seize on the standing issue as a way to dispose of the case without ruling on the merits of Newdow's thorny challenge – possibly by issuing a summary dismissal of the case early in the Court's new term. Lawyers knowledgeable about the case said the precise impact of the custody decision would depend on how much actual authority Newdow is given over his daughter's education and other aspects of her life.

Sacramento lawyer Dianne Fetzer, who is representing Banning in the custody battle, declined comment, referring inquiries to another lawyer on the team, Paul Sullivan, a partner at Foley & Lardner's Washington, D.C. office. Sullivan confirmed that the judge had rendered an opinion in the custody case, but declined to predict the ruling's impact on the Pledge case, because, he said, in its final form “it may contain more restrictions than one would expect when a judge grants joint custody.”

The grant of joint custody to a parent may give him standing to challenge the Pledge of Allegiance. Michael Newdow, who lost custody of his daughter in February 2002, has regained partial legal custody, which may increase the chances that the U.S. Supreme Court will take up his controversial First Amendment challenge to the words “under God” in the Pledge. The change in custody is just the latest unusual twist in the Pledge cases, which Newdow, who is licensed as both a physician and a lawyer, is handling pro se.

Background

The appeal stems from a series of rulings by the 9th U.S. Circuit Court of Appeals. In June 2002, a three-judge panel agreed with Newdow that the Pledge violates the establishment clause of the First Amendment because of the 1954 federal law that added the words “under God” to its text. After the ruling, the girl's mother, Sandra Banning, notified the appeals court that Newdow did not have legal custody of his daughter and that, as the sole custodial parent, she had no objection to her daughter reciting the Pledge with its reference to God. Backing the mother, the Bush Administration filed a supplemental brief arguing that Newdow lacked standing to mount his challenge.

The 9th Circuit then ruled on the standing question. The three-judge panel held that Newdow, in spite of his noncustodial status, had standing in his own right to challenge an “unconstitutional government action affecting his child.” On the merits, the panel later amended its first decision to limit its finding of unconstitutionality to reciting the Pledge in schools – not the wording of the Pledge in general. This narrowing of the original ruling triggered Newdow's appeal to the Supreme Court, while the federal government and the school board challenged the notion that the Pledge was unconstitutional at all.

The Pledge cases – United States v. Newdow, No. 02-1574, Elk Grove Unified School District v. Newdow, No. 02-1624, and Newdow v. United States, No. 03-7 – are on the agenda for the Court's Sept. 29 private conference. Lawyers in the case say it is unlikely that the custody order will be finalized in time for the Court conference. Newdow, however, has already written to the Court to inform the justices of the development and to suggest that standing is no longer a viable issue.

Newdow's adversaries at the Supreme Court – including the government, led by Solicitor General Theodore Olson, and former Solicitor General Kenneth Starr, who represents Banning before the Supreme Court – relied heavily on Newdow's lack of custody in arguing to the Supreme Court that he did not have standing to challenge the recitation of the Pledge in public schools on behalf of his daughter.

Conclusion

Many experts have speculated in recent weeks that the Supreme Court would seize on the standing issue as a way to dispose of the case without ruling on the merits of Newdow's thorny challenge – possibly by issuing a summary dismissal of the case early in the Court's new term. Lawyers knowledgeable about the case said the precise impact of the custody decision would depend on how much actual authority Newdow is given over his daughter's education and other aspects of her life.

Sacramento lawyer Dianne Fetzer, who is representing Banning in the custody battle, declined comment, referring inquiries to another lawyer on the team, Paul Sullivan, a partner at Foley & Lardner's Washington, D.C. office. Sullivan confirmed that the judge had rendered an opinion in the custody case, but declined to predict the ruling's impact on the Pledge case, because, he said, in its final form “it may contain more restrictions than one would expect when a judge grants joint custody.”