SACRAMENTO, Calif. (AP) — The historic challenge to the
words “under God” in the Pledge of Allegiance might
never have reached the Supreme Court if not for a collision of
faith between two parents — one an atheist, the other a
born-again Christian.

Normally, the personal sagas of the parties in a Supreme Court
case are just a footnote to the constitutional principles. But the
clash between the parents threatens to derail the entire case,
which will be heard by the high court tomorrow.

The case was brought by Michael Newdow, an atheist who does not
want his 9-year-old daughter exposed to the phrase “under
God,” which Congress inserted in 1954 in a Cold War
expression of abhorrence of godless communism.

The girl’s mother, Sandra Banning, is a born-again
Christian locked in a bitter custody dispute with Newdow, whom she
never married. Backed by former Whitewater prosecutor Kenneth
Starr, she has told the justices that her daughter has no objection
to reciting “under God” in school each day.

Should the justices wish to sidestep the church-and-state
issues, the custody quarrel between the former lovers presents them
with an easy out. They may just decide that Newdow, because he did
not have custody at the time, could not sue without the
mother’s consent, and dismiss the case outright.

“This custody issue could be a stumbling block on the way
to getting an answer,” said Douglas Kmiec, a constitutional
law expert at the Pepperdine University School of Law.
“It’s clear the law gives Newdow a right as a parent to
instruct his daughter in what he believes about the world, but what
the law doesn’t give a parent is the right to unilaterally
veto what the other parent believes about the world.”

In an explosive ruling in June 2002, the San Francisco-based 9th
U.S. Circuit Court of Appeals, the nation’s most liberal
appellate court, declared that reciting the pledge in public
schools in unconstitutional because the words “under
God” amount to an endorsement of religion.

The ruling spun heads from California to Washington. If upheld,
the ruling would overturn 50 years of common practice in
America’s schools. Last October, the Supreme Court justices
announced that they wanted to hear more about whether Newdow had
legal standing.

“How weird it is, that standing on a case may ultimately
determine the pledge case, that it depends on quirky domestic
relations,” said Vikram Amar, a Hastings College of the Law
scholar.

The acrimony between Banning and Newdow is intense. They could
not even agree whether the fourth-grader in the Elk Grove school
district near Sacramento could attend the Supreme Court
arguments.

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