In the continuation of the case ruling on the unconstitutionality of reciting the Pledge of Allegiance in public schools, the federal court of appeals panels affirmed its opinion allowing the father who initiated the case to continue his suit.
The three-judge panel of the U.S. Ninth Circuit Court of Appeals decided in Dec. 4 that though Michael Newdow, a self-described atheist, had lost custody over his daughter, could pursue his claim as a parent to challenge the recitation of the Pledge of Allegiance in school. Two members of the panel reiterated their June ruling that the pledge’s inclusion of “under God” is a violation of the First Amendment’s ban on government establishment of religion.
"When school teachers lead a recitation of the Pledge of Allegiance according to school district policy, they present a message by the state endorsing not just religion generally, but a monotheistic religion organized 'under God,'" judge Alfred Goodwin ruled, "The pledge to a nation 'under God,' with its imprimatur of governmental sanction, provides the message to Newdow's young daughter not only that non-believers, or believers in non-Judeo-Christian religions, are outsiders, but more specifically that her father's beliefs are those of an outsider, and necessarily inferior to what she is exposed to in the classroom."
Judges Stephen Reinhardt and Ferdinand Fernandez concurred Newdow be allowed to continue the suit, affirming the panel’s highly controversial June ruling against the pledge.
If Newdow pursues the suit and the case passes through the 11-member panel of the Ninth Circuit review, students will be prevented from reciting the pledge in the nine Western states of the Ninth Circuit.
The panel’s June 26 ruling immediately received criticism from all sides. And though the panel enforced the ruling, the Senate approved a resolution affirming the pledge by a 99-0 vote. In early October, the House of Representatives passed a similar measure by a 401-5 vote.
After the June ruling for Newdow, it was revealed that his 8 year old daughter, who wished to be remained unnamed, did not oppose the pledge. Sandra Banning, who has sole custody of the girl said she and her daughters are members of Calvary Chapel of Laguna Creek, an evangelical church in Elk Grove, California.
Banning, whom was never married to Newdow, filed suit in August challenging Newdow's standing in the case, asking her daughter be removed from it. She expressed concern that her daughter may be harmed by "lifetime of public scorn" if she is incorrectly perceived as the "little atheist girl that attacked the pledge."
In September, a California Superior Court judge blocked Newdow from representing his daughter in the suit but allowed the Ninth Circuit panel to decide whether the father could maintain his legal challenge in the case.
In the latest decision, the Ninth Circuit panel ruled Newdow's loss of custody rights did not strip him of "all of his parental rights." Banning "has no power, even as sole legal custodian, to insist that her child be subjected to unconstitutional state action," the panel said. Newdow has a legal right "to protect his own interests," the panel ruled.
By Pauline J.