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Ninth Circuit panel affirms ruling, says father may continue pledge suit

SAN FRANCISCO (BP)–The federal court of appeals panel that ruled the Pledge of Allegiance unconstitutional has affirmed its opinion and decided the father who initiated the case may continue his suit.

Michael Newdow, a self-described atheist, is not prevented from pursuing his claim as a parent even though he lost custody of his daughter in February, the three-judge panel of the U.S. Ninth Circuit Court of Appeals said Dec. 4. Even though Newdow no longer represents his daughter, he maintains standing as a parent to challenge the recitation of the Pledge of Allegiance in school, the judges ruled.

In the opinion, two members of the panel reiterated their June decision 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 wrote. “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.”

Judge Stephen Reinhardt joined Goodwin in the opinion. Judge Ferdinand Fernandez concurred Newdow should be able to continue his action but did not join in the other comments of the decision.

The panel’s opinion affirmed it is not backing down from its highly controversial June ruling against the pledge. With the ruling that Newdow’s suit can go forward, the next step could be a review by an 11-member panel of the Ninth Circuit. If permitted to stand, the opinion would prevent students from reciting the pledge in the nine Western states of the Ninth Circuit.

The panel’s June 26 decision immediately ignited a firestorm of criticism — and not just from religious conservatives. The panel quickly stayed enforcement of the ruling. The Senate promptly 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 panel’s initial ruling for Newdow in June, it was revealed his 8-year-old daughter did not oppose the pledge. Sandra Banning, the girl’s mother, said her daughter enjoyed reciting the pledge. Banning, who has sole custody of the girl, also said her daughter and she are members of Calvary Chapel of Laguna Creek, an evangelical church in Elk Grove, Calif.

Banning, who was never married to Newdow, filed suit in August challenging Newdow’s standing in the case and asking her daughter be removed from it. She expressed concern her daughter, who has remained unnamed, would be harmed by a “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 its 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.

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