Special Report

Father Doesn’t Know Best

Not when he doesn't have custody and the mother wants their daughter to continue reciting the Pledge.

By 3.22.04

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SACRAMENTO -- Tomorrow the United States Supreme Court hears a lawsuit that features two parents embroiled in a cross between "Family Feud" and "Kramer v. Kramer." It's the Pledge of Allegiance case, Elk Grove Unified School District v. Newdow. The media coverage is playing up the marquee controversy in the litigation: Whether the words "under God" must be removed from the Pledge, as the Ninth Circuit Court of Appeals ordered two years ago. But a family-law dispute also looms large: Can a father without legal custody sue to "protect" his daughter from the Pledge -- when the mother is adamant that the girl should continue reciting the familiar words in her public school?

The Supreme Court asked for both questions to be briefed and it must address the father's "standing," or legal authority to bring the lawsuit, first. Without even getting to the issue of the Pledge's constitutionality, the Supreme Court can and should put a halt to Newdow's case right there.

Michael Newdow is the father, a Sacramento emergency room doctor who has made himself the nation's most famous atheist. Newdow is currently juggling three legal actions to eject God from every corner of the Public Square. One would get rid of Congress's chaplains. Another takes aim at the Rev. Franklin Graham's prayer to Jesus at President Bush's inauguration. The third targets the Pledge.

Newdow's daughter was his prop for getting his anti-Pledge jihad before a judge. Now nine, she attends school in the Elk Grove district south of Sacramento, where teachers lead the Pledge every morning for students who wish to take part. Four years ago, Newdow filed a federal lawsuit objecting to this practice, both on his daughter's behalf and in his own name as her father. In 2002, the Ninth Circuit confirmed its reputation for judicial joyriding by siding with Newdow against the school district. A three-judge panel ruled, 2-1, that saying the Pledge, with "under God," in public school violates the First Amendment by getting government into the religion business.

No one objected more strenuously to this than Sandra Banning of Elk Grove, the mother of Newdow's daughter. During much of the life of the lawsuit, Banning had sole legal custody of the girl. According to the California Family Code, "sole legal custody" means "the right and the responsibility to make the decisions relating to the health, education, and welfare of a child." Even now, when Newdow and Banning share custody, Banning is the final decision-maker about the girl's schooling and welfare.

Banning "has always believed -- and has taught her child -- that the Pledge [with "under God" intact] embodies an important expression of American ideals," according to a brief that she has submitted to the Supreme Court. Authored by former Solicitor General Kenneth Starr, among others, the brief calls the Pledge "an integral part of the fabric of our society" and "part of the American tradition of inclusiveness -- one that reflects the democratic beliefs of a diverse society."

As for Newdow's crusade, Banning is "profoundly concerned" that his lawsuit would "force all public schools to banish any statement that might be construed as a reference to religious values, no matter how benign, latitudinarian, or important that expression may be to the inculcation of civic virtue." The Banning brief urges that Newdow "not be permitted to use [their daughter] as a surrogate for his own private agenda of imposing certain beliefs on the Nation's schoolchildren."

IF NEWDOW DID NOT HAVE ultimate say in his daughter's education, how did the appellate court rationalize letting his lawsuit go forward? Through a selective reading of precedent that rivals the Ninth Circuit's censorship of the Pledge in its audacity. Can a noncustodial parent sue to calibrate how much religion his child may be exposed to, at school or anywhere else? The answer lies with state-level family and custody law. But instead of applying California case law in a straightforward way, the Ninth Circuit did a cut and paste job to get the desired result.

The justices leaned heavily on a 1980 California Court of Appeals ruling, Murga v. Peterson, which held that a noncustodial parent may be involved in the child's religious activities; they conveniently passed over Murga's statement that "the custodial parent undoubtedly has the right to make ultimate decisions concerning the child's religious upbringing." (Italics added.)

In response to this twisting of precedent, former California Supreme Court Justice Joseph Grodin has called on the Supreme Court to kick Newdow back to the Ninth Circuit. He wants the appellate court to be ordered to ask the California Supreme Court for a ruling on Newdow's standing to sue -- something the Ninth Circuit should have done to begin with, out of deference to the state judiciary on matters of state law.

The Ninth Circuit's attempt to find standing for Newdow -- a noncustodial parent at the time he was trying to use his status as a father to advance his atheism -- carries broad and disturbing implications. Drafting and interpreting family law policy has traditionally been a domain for the states. By imposing its own arbitrary imprint on California law relating to child custody, making itself the Oracle of a parent's rights, the court points in an ominous direction -- towards "federalizing" family law, arrogating yet more power to unelected federal judges.

If the Supreme Court recognizes the danger in taking sensitive questions of domestic relations away from state legislators and state jurists, it will give the California precedents a less "creative" reading than the Ninth Circuit insisted upon -- and toss out the Newdow case for want of standing. Alternatively, it could follow Justice Grodin's suggestion and ask California's high court for an opinion on Dr. Newdow's right to sue. Either of these options might be portrayed as "avoiding" issues of church and state, but in fact they're the only paths open if the Court wants to affirm allegiance to principles of federalism and local control.

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About the Author

Harold Johnson is an attorney in Sacramento with the Pacific Legal Foundation, which has submitted a friend-of-the-court brief supporting the Elk Grove Unified School District.