Michael Newdow, the Sacramento atheist who wants "under God" removed from the Pledge of Allegiance, relaunched his constitutional case Tuesday without the glitch that got it thrown out at the U.S. Supreme Court last year.
The high court obliterated Newdow's first case - and his victory in a federal appeals court - by ruling in June that he lacked "standing" to sue. He doesn't have primary custody of his daughter, whose daily exposure to the pledge in an Elk Grove public schoolroom was at the heart of the case. Therefore, said the justices, he had no right to sue on her behalf. The justices did not rule on the merits of Newdow's arguments.
This time around, Newdow is joined by eight co-plaintiffs - all custodial parents of children who are students in Northern California public school districts or the children themselves.
Alan Brownstein, a constitutional authority at the University of California, Davis, said, "Obviously, he's trying to circumvent the Supreme Court's ruling."
Newdow said his goal in the new case is to overcome the obstacle placed by the high court. "There is a case or controversy, and I'd like to have it addressed," he said.
But Brownstein said there will be other hurdles for Newdow v. Congress, which was filed in U.S. District Court in Sacramento and was assigned there to Senior U.S. District Judge Lawrence Karlton and Magistrate Judge Dale Drozd.
One is the sentiment to keep the pledge intact that was expressed by various Supreme Court justices in the last round.
Brownstein also mentioned the storm of criticism that was fired at the 9th U.S. Circuit Court of Appeals when it ruled in Newdow's favor in 2003. Brownstein said it would be legitimate for district and circuit judges to take the public outcry into account this time.
Once again, the emergency room physician and non-practicing attorney, whose skill in making his arguments to the high court won praise from the pros last year, is the plaintiffs' only lawyer.
Newdow said he'll file similar suits on behalf of families across the nation in the coming year. The next is planned for Texas, he said.
The rewritten case is based on the First Amendment's guarantee of official neutrality regarding religion, the 14th Amendment's equal protection clause, comparable provisions in the California Constitution and the federal Religious Freedom Restoration Act.
Except for Newdow, all of the plaintiffs are identified in the complaint by pseudonyms to protect them from possible retaliation.
Some of the children assert that they don't believe in God and have suffered harassment or ostracism for objecting to the pledge.
In an interview Tuesday, a parent of one of the child plaintiffs said the third-grader has been aware of the pledge issue since Newdow's last case was in the news.
The child remarked at the time, "That's not right," and became "quite activist about it," the parent said.
The complaint identifies the child as a pantheist who doesn't believe in a personal God.
Other children "can become quite nasty ... and I daresay they have," said the parent. "You shouldn't put the child in the position of being a public spectacle because of their perceived nonconformity."
The parent claims rights as a taxpayer to have the public schools maintain religious neutrality.
Some sections of the legal complaint echo the 9th Circuit's 2003 opinion.
The plaintiffs "are all adversely affected ... by the message (the children) receive vis-a-vis their parents' religious beliefs. They are told with each reci tation that their parents' religious choices are wrong. This is an injury both to the children and to the parents," the suit argues, citing fundamental rights of privacy and "parenthood."
Newdow's own daughter isn't listed in the new case, though her school district, Elk Grove Unified, the main defendant in last year's case, is named again. A couple called Jan and Pat Doe send their child to school there. All three are identified as atheists. Other plaintiffs are identified as agnostics.
Sandra Banning, the mother of Newdow's daughter, her principal legal custodian and an avowed Christian, said through a lawyer that she continues to support the pledge "as it is." The lawyer said Banning hadn't seen the legal complaint.
Newdow is asking for a broader ruling than the one granted by the 9th Circuit, which declared the pledge unconstitutional only in public school settings. As he did in the first case, Newdow requests a declaration that the 1954 federal law inserting "under God" in the pledge is unconstitutional, and an order to delete that phrase from the pledge in all official contexts.
The complaint also asks that California be ordered to change or repeal a state law that allows recitation of the pledge as currently written in public schoolrooms.
The complaint asks, too, for a ban on the current pledge in five school districts - Elk Grove Unified, Sacramento City Unified, Elverta Joint Elementary, Rio Linda Union and Lincoln Unified in Stockton.
Officials at the Sacramento and Stockton districts said they wanted to review the complaint before commenting.
Rio Linda Superintendent Frank Porter also declined to comment on specifics. He said the pledge is recited in the district at the start of every school day, but "individuals may choose not to participate for personal reasons."
Elk Grove Superintendent Steven Ladd said in a prepared statement that the district "will again proudly defend the right of willing students to recite the Pledge of Allegiance as they have for 50 years."
But Ladd said the district was disappointed that the case would consume time, energy and resources "that we could otherwise use on behalf of children."
About the writer:
- The Bee's Claire Cooper can be reached at (415) 551-7701 or firstname.lastname@example.org.