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Girl in pledge case not an atheist, mom to tell court

Bob Egelko, Chronicle Staff Writer Saturday, July 13, 2002

The mother of an 8-year-old Sacramento-area girl whose father challenged the Pledge of Allegiance is entering the case now for a simple reason: to make it clear that her daughter is not an atheist, her lawyer said Friday.

She won't be arguing that the pledge is constitutional, the lawyer said, but if the court used the new information to dismiss the father's suit, the mother would welcome the result.

"It is a narrow charge that we have from our client, to get that information to the court and the general public," said attorney Paul E. Sullivan, a partner in a Washington, D.C., law firm. "She was concerned that the girl would be branded for the rest of her life as the girl who was the atheist in the pledge case or the girl who didn't like the Pledge of Allegiance."

But Sullivan added -- and some independent legal analysts agreed -- that the intervention of a mother with sole custody of the child, and religious views that contradict the father's, could have a serious effect on his ability to maintain the suit.

In a stunning 2-1 decision June 26, the U.S. Court of Appeals in San Francisco declared the pledge unconstitutional because the phrase "under God," added by Congress in 1954, makes it a government endorsement of religion. The federal and state governments and the Elk Grove Unified School District, where the girl has just finished the second grade, are all asking for a rehearing before an 11-judge panel.

The suit was filed by Michael Newdow, an atheist acting as his own lawyer, in 2000 when his daughter was in kindergarten. The appeals court said Newdow had legal standing, essential to any lawsuit, because he was challenging "a practice that interferes with his right to direct the religious education of his daughter."

On Thursday, the child's mother, Sandra Banning, announced that she had retained Sullivan to bring the facts about her daughter to the court's attention.

"It is my hope that these efforts will lead to a reversal of (the Court of Appeals') decision," Banning said in a statement.

She described herself and her daughter as practicing Christians who are active in their Elk Grove church. When her daughter expressed sadness at the ruling, Banning said, she told her that it would be a long time before the case was over. The girl replied "that it was OK because she will still whisper 'one nation under God' and no one will hear her and know she is breaking the law," Banning said.

Sullivan said Banning was awarded full custody of the girl after Newdow filed his suit. The child, who lives with her mother and is visited by her father, has not been identified in court documents or the news media.

Newdow did not return telephone calls Friday but was quoted in several published reports as saying the case is largely about his beliefs, not his daughter's, and should survive Banning's objections. But some analysts said the suit could be imperiled.

"If she has custody, she's got to decide what the child will learn," said John Coons, a professor at UC Berkeley's Boalt Hall School of Law. "I think you have a very serious standing question, because he's not in a position to have that child raised as a professed atheist."

Vikram Amar, who teaches constitutional law at UC's Hastings College of the Law in San Francisco, said it would be plausible for a court to decide that "the one who has legal custody gets to make that decision (about the child's religious upbringing), like other decisions" involving the child. Courts often try to accommodate both parents' views, so a key question in this case may be whether Banning's concerns can be satisfied without dismissing Newdow's suit, Amar said.

Sullivan said some accommodation, like an amended ruling that made the child's situation clear, might be possible.

"It will satisfy (Banning) that she has had the opportunity to get the information to the court . . . and to the American public," the lawyer said. "What the court does with it is beyond her control."

He said he and others at his firm, Foley & Lardner, are studying whether to ask for full intervention in the case -- status that would allow them to take part in oral arguments and appeal any unfavorable ruling -- or merely file a friend-of-the-court brief presenting Banning's views. The filing will be made by early August when the government's appeals are due, Sullivan said.