U.S. 9th Circuit Court of Appeals says atheist father was right to sue over "under God"
After the 9th U.S. Circuit Court of Appeals famously declared the Pledge of Allegiance an unconstitutional violation of the First Amendment, the country reacted with outrage. But few seemed more upset than Sandra Banning, the ex-partner of the atheist who brought the suit, and mother of the child in whose name he sued. "I just stood there with my mouth open and thought, 'Oh my gosh, the President of the United States thinks my child's an atheist," Sandra Banning said back in July. "We are not atheists, and I need to communicate to the American people that my daughter's not being harmed by reciting the Pledge of Allegiance."
Banning has sole custody of their daughter, and asked the court to either dismiss the case or take her daughter out of it. "I do not wish for my daughter, for the rest of her life, to be known as 'the atheist child who hated the Pledge,'" she told the court. "It is therefore imperative that the court allow the (case) to go forward, if at all, without my daughter as a party."
Michael Newdow, the atheist who brought the case on behalf of his daughter, opposed the motion. "I'm still a parent, and still have a right to keep the government from indoctrinating my child," he said.
In September, a California Superior Court ruled that Newdow couldn't include his daughter in the suit, but said the 9th Circuit should decide whether it could continue anyway.
Yesterday, the same three-judge panel that voted 2-to-1 against the Pledge ruled unanimously. "California state courts have recognized that noncustodial parents maintain the right to expose and educate their children to their individual religious views, even if those religious views contradict those of the custodial parent or offend her," wrote Judge Alfred T. Goodwin. "We hold that Banning has no power, even as sole legal custodian, to insist that her child be subjected to unconstitutional state action. … Further, Ms. Banning may not consent to unconstitutional government action in derogation of Newdow's rights or waive Newdow's right to enforce his constitutional interests. Neither Banning's personal opinion regarding the Constitution nor her state court award of legal custody is determinative of Newdow's legal rights to protect his own interests."
Conservatives have criticized the 9th U.S. Circuit Court of Appeals for judicial activism, and they'll surely add this one to the list. The Recorder, a Northern California legal newspaper, notes that this order "breaks new legal ground in its own right."
Newdow of course celebrated the decision, but surprisingly so did Banning. "All she wanted was to make sure that the child was not a party to the case, and the court recognized that when it said Newdow is no longer claiming to represent the child," her lawyer told the Los Angeles Times. "In that respect, Sandra Banning has accomplished what she wanted, which is to get her child out of the case."
The Times and other observers note that the court went much further than it had to. Rather than just ruling on the legal merits of Banning's motion, the court reiterated its earlier decision. "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,'" Goodwin wrote.
While Newdow cannot expect the entire community surrounding his daughter to participate in, let alone agree with, his choice of atheism and his daughter's exposure to his views, he can expect to be free from the government's endorsing a particular view of religion and unconstitutionally indoctrinating his impressionable young daughter on a daily basis in that official view. 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.
The judge who dissented in the earlier decision didn't sign off on this argument, but instead wrote a concurring opinion narrowly focusing on the Newdow-Banning dispute.
So even though Goodwin had stayed his initial decision, it's clear that he's not backing down. "I was struck by the majority remaining quite unrepentant on the merits," UCLA constitutional law professor Eugene Volokh told the Times. "It is an interesting indication that they were not at all persuaded by the firestorm of opposition to the decision."
Bono goes to Wheaton:
- Bono brings AIDS tour to city | Bono took a lighthearted tone with the rambunctious audience at the evangelical Christian school (Chicago Sun-Times)
- Different lifestyles, same heart | Without introduction, Bono steps onto the Wheaton College stage and pandemonium erupts (The Daily Herald, Chicago suburbs)
- Bono rocks Chicago with plea to fight AIDS | U2 frontman leads celebrities on tour to appeal for Africa (Chicago Tribune)
- Also: Lending celebrity to a crisis (Editorial, Chicago Tribune)
- Religion linked to positive outlook in teenagers | Teenagers who attend worship and rate religion as important have positive self-images, are optimistic and enjoy school (The Washington Times)
- Pupils 'disagree' with Church over sex | Fifteen and 16-year-old pupils in 12 Catholic secondary and grammar schools were asked a range of questions about sexual relationships and the way they are taught about them at home and at school (BBC)
- Homeschool rules proposal triggers protest | Parents oppose notifying local districts every year (The Baltimore Sun)
- Religious conversion | Charles University's Catholic Theological Faculty opens program to women (The Prague Post)
- Survival of the slickest | How anti-evolutionists are mutating their message (Chris Mooney, The American Prospect)
Church and state:
- Florida atheists challenge angels on lawn of City Hall | City Council votes unanimously to keep the display (The Washington Times)
- Supreme Court says menorah can be displayed in Cincinnati plaza | Justices note Fountain Square's historic character as a public forum (Associated Press)
- City solves creche parking dispute downtown | City Hall erects its own signs in church-state separation flap (Pittsburgh Post-Gazette)
- High court turns aside opponents of 'Choose Life' plates | Justices won't review Louisiana case, in which some allege 'symbolic union' between state, Christian groups (Associated Press)
- Thou shalt not judge | Chief Justice Roy Moore of the Alabama Supreme Court is on a crusade to convert the country to his particular religion because he's concerned it's going to hell in a hand basket (Editorial, The Toledo Blade)
- On our list of rights, religion comes last | Canada has become rather impatient with public manifestations of religious belief (Robert Fulford, National Post)
Politics and law:
- The future of compassion | President Bush's social program hasn't yet gotten a chance (John J. DiIulio, Jr, The Philadelphia Inquirer)
- Bold words from a wobbly man | DiIulio needs to apologize, badly—but it's not to Rove and the White House. It's to the American public he hoodwinked last year by serving as the frontman for Bush's faith-based initiative (Joan Walsh, Salon.com, subscription required)
- How far Bush will go on conservative agenda | When the new Congress meets, Bush will have to satisfy the Christian right—without seeming their captive (Linda Feldmann, The Christian Science Monitor)
Money and business:
- With her, wearing the right hat is a religious experience | The market for elaborately decorated church hats made for black women is growing tremendously. (The New York Times)
- Boy, talk about bread upon water | Church nets $140,000 from $20,000 investment (Lexington [Ky.] Herald-Leader)
- Holy Moses: Does Bible hold key to oil? | A newly erected oil rig is testament to one man's faith in the Bible to deliver material rather than spiritual riches (The Scotsman)
- Pastors struggle after losing savings in alleged scam | Like other ministers, the Rev. Michael Jones of Philadelphia said he was caught up in a frenzy that followed the charismatic Abraham Kennard wherever he went (Associated Press)
- Group comes to defense of Boy Scouts | Fund drive is set up after United Way chapter ends support over organization's gay ban (Los Angeles Times)
- Church leader accepts gay rule | Rowan Williams, the incoming Archbishop of Canterbury, has mollified evangelical critics by saying he would no longer knowingly ordain a gay priest (The Guardian, London)
- New archbishop backs same sex relationships | The next Archbishop of Canterbury looks set to spark a new round of controversy in the Anglican Church after saying he could "see a case" for acknowledging same sex relationships (icNewcastle)
- Priests force delay of same-sex rites | Archbishop tries to set up talks as dissident parishes withhold money (The Vancouver Sun)
- Prostitutes sue Christians over loss of earnings | A U.S.-backed evangelical group transformed the largest brothel in the city of Concepcion into a church and center for repentant sex workers (Ananova)
- Christian college debates gay students' rights | Student apparently left William Jewell College because of threat (KMBC, Kansas City)
- Critics fear law for gays will muzzle preachers | Pennsylvania Gov. Mark Schweiker yesterday signed legislation that gives homosexuals statewide legal protection from verbal harassment and hate crimes (The Washington Times)
- Law given authority to seek Ch. 11 | No final decision; outside backing for cardinal wanes (The Boston Globe)
- Cardinal Law gets ok to file bankruptcy (Associated Press)
- What happens when a church goes bankrupt? | If the bankruptcy court decides the church owes the alleged victims a large sum of money, it is going to be obliged to pay them as typical Chapter 11 "creditors" and not necessarily on its own terms (Chris Mooney, Slate.com)
- Boston church panel will allow archdiocese to weigh bankruptcy | In order to deal with the lawsuits it faces over abuse by priests, a finance panel of the Archdiocese of Boston voted to allow the church to file for bankruptcy (The New York Times)
- Celibacy 'drives some priests to be sex abusers' | So says a report from published by the ecumenical body Churches Together in Britain and Ireland (The Times, London)
What Would Jesus Drive campaign:
- Going to extremes on behalf of the environment | The idea of a bunch of mortals who sell bumper stickers announcing what Jesus would not drive is as nauseating as some car manufacturer claiming that Jesus would be delighted to drive off in one of its gas-electric hybrid models that gets a holier-than-thou 60 mpg (Jeffrey Page, The Bergen [N.J.] Record)
- Group's anti-SUV campaign puts church on wrong path | We are instructed to be good stewards of God's creation, but that does not mean churches should be in the business of setting environmental policy (Raymond J. Keating, Newsday)
- Jesus and fuel efficiency | It's one thing to hire Martha Stewart to sell towels or pay Tiger Woods to wear a hat with a swoosh. It seems quite another to draft Jesus. (Laura Pulfer, The Cincinnati Enquirer)
- Beauties and the Beasts | Islamic fundamentalists opened another front in their war on liberal culture with their bloody Miss World riots in Nigeria. But many feminists and progressives still don't want to hurt their feelings (Andrew Sullivan, Salon.com, full article here)
- Some stout sermons need a little salt | The American dilemma is that faith as taught by Islamists is not faith as we in the West understand faith (Wesley Pruden, The Washington Times)
- An Islamic Reformation | What's going on in Iran today is precisely the war of ideas within Islam that is the most important war of all (Thomas L. Friedman, The New York Times)
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