San Jose Mercury News

11/30/03

As date with Supreme Court nears, man seeking pledge ban is relentless

DRIVE AGAINST `UNDER GOD' ONE FACET OF HIS LEGAL EFFORTS

By Howard Mintz

SACRAMENTO -Inside Michael Newdow's modest, two-story house, the Bill of Rights and the First Amendment hang from the walls. Framed pictures of a smiling, adorable little daughter are propped on every countertop and desk. And scattered across a coffee table in a cluttered living room are pieces of a jigsaw puzzle of the American flag.

For Newdow, these are more than a sampling of his personal tastes. They are emblems of what drove him to press a legal battle that now threatens the survival of one of the country's most cherished rituals: reciting the Pledge of Allegiance in school.

Day after day, Newdow, America's most unpopular atheist, retreats to a cramped, converted upstairs home office to tend to the deep passions behind his legal assault on the pledge. He is consumed by a near-obsession with the Constitution, which fuels his efforts to get God removed from all corners of government because of his atheist beliefs. And he is equally consumed by a custody feud over his 9-year-old daughter, who has been a central figure in his philosophical fight to remove the phrase ``under God'' from the pledge.

Newdow's passions have ensured him a place in legal history. A federal appeals court last year plucked him from obscurity by agreeing with his argument that the pledge should be banned from public schools because it includes the words ``under God'' and thus amounts to government-endorsed religion.

Now, Newdow, a doctor with a law degree who has represented himself, has gotten his long-shot challenge all the way to the U.S. Supreme Court, which is preparing to hear arguments in the case early next year. If Newdow has his way -- and legal experts say he's got a chance -- this will be the last school year children utter ``under God'' when they recite the pledge.

``I'm for the country as much as anybody,'' said Newdow, 50. ``But I'm for the Constitution.

``There is no question I'm right. This is the easiest case the Supreme Court is ever going to get.''

Newdow, however, is hard-pressed to find many people or institutions in agreement with him, from President Bush, who called the original pledge ruling ``ridiculous,'' to the Elk Grove Unified School District, which he sued because his daughter attends school there.

Sandra Banning, the churchgoing mother of Newdow's daughter, also disagrees with him -- emphatically. And that has complicated Newdow's quixotic challenge of the pledge because it has become entangled in a custody feud with Banning.

Banning, who insists she and her daughter are just fine with keeping God in the pledge, would prefer that Newdow keep the young girl out of the matter. Newdow and Banning have kept their daughter's name out of the media.

``It's OK with me if Mike has all these beliefs and wants to take on the Constitution,'' Banning, 44, said recently over coffee a few blocks from her Elk Grove home. ``I only object if it involves our little girl.''

A pair of battles

Banning and Newdow, who never married, do not agree on much, including whether Newdow's passion for atheism and getting God out of government have been part of his life for long. The two met while Newdow was in medical school in the late 1970s.

``This passion, this obsession, this intensity,'' Banning said, ``isn't the Mike Newdow that was part of my life.''

He waved off Banning's version. ``I never believed in things I can't see,'' Newdow said of his atheism.

His path to the pledge case has been eclectic. He was a successful, well-paid emergency-room doctor for more than 20 years. Over time, he developed a dislike of the medical profession's inner workings, prompting him to get a law degree, which he planned to use to change the medical world.

That never happened. But a few years ago, two things persuaded Newdow to trade the emergency room for the courtroom: First, the mention of ``God'' in American institutions, from currency to the pledge; second, a fight with Banning over how much time he could spend with his daughter.

By the time the girl was in kindergarten, they found themselves in family court. Newdow, who sees his daughter every other weekend, wants equal custody.

To Newdow, challenging the family court system far overshadows his pledge case.

``I'd drop it in a second to get my kid,'' he said of the pledge case.

But the custody fight is more than a soapy backdrop to the pledge battle. At various points in the case, it has been raised to challenge Newdow's ability to sue Elk Grove schools on behalf of his daughter precisely because he didn't have custody at the time the lawsuit was first filed.

Newdow and Banning even sparred last spring over whether he should be allowed to bring his daughter to oral arguments in the pledge case in San Francisco's 9th U.S. Circuit Court of Appeals (he was). In two weeks, they will again be in front of a Sacramento judge, fighting over whether Newdow can bring her to the Supreme Court.

Newdow says it is a chance for his daughter to watch her father make history. Banning sees it differently.

``From a mother's perspective, I don't know if she has the emotional maturity to deal with all this,'' Banning said. ``I don't want her to be made out to be a celebrity child.''

Expecting to win

Newdow says he's always had a concern about the inclusion of God in public life, such as ``In God We Trust'' on money. But when his daughter recited the pledge one day in his living room, including the ``under God'' reference, Newdow considered it a direct affront to his atheist views -- and to his constitutional protections.

In pressing his case, Newdow insists he has no quarrel with the pledge. He merely wants ``under God'' removed -- two words that Congress added to the pledge in 1954. Newdow was so confident of winning that, before the appeals court ruling, he added an extra phone line in his office to field calls from the media and strangers who wound up bombarding him with profanity-laced messages.

For a time, he worried about his safety.

``Here they are, wanting God in government because they think it's important to show respect for this Supreme Being upon which they say morality is based,'' Newdow said, ``and then they feel it's warranted to spew forth vile messages to someone they've never met.''

While Newdow may have expected to succeed, the rest of the country was caught off guard. Elk Grove Unified Superintendent Dave Gordon, who says school officials took Newdow's lawsuit seriously, was surprised by the appeals court ruling. And many local teachers and parents were outraged.

``It is amazing one person could have the power to change the lives of all these children,'' said Jolene Jones, an Elk Grove kindergarten teacher.

Nobody was taken aback more than Banning. She recalls getting a phone call from her sister the day of the pledge ruling, telling her she better ``turn on the television.''

``I felt like I'd totally missed the boat,'' Banning says. ``I'd never given his argument any merit.''

Banning hired a high-powered Washington, D.C., law firm to inject her position into the case, arguing that she and her daughter supported keeping the pledge as it is. Now, Banning is represented in the Supreme Court by former solicitor general and Whitewater counsel Kenneth Starr.

``It's a little out there, isn't it?'' she said with a laugh. ``I mean, there is no reason he should know my name.''

`I have the arguments'

Any day, the Supreme Court will decide whether Newdow will be a rare example of someone allowed to represent himself before the justices. Newdow believes he's earned the right.

``I'm good,'' he said. ``I have the arguments.''

Others view Newdow's bid to represent himself warily. Americans United for Separation of Church and State, frequently involved in such legal conflicts, has asked the high court for permission to present separate arguments on Newdow's side. But they don't oppose Newdow having a chance to argue his own case, either.

``It's hard to argue with his success to date,'' said Barry Lynn, executive director of the organization. ``It's certainly been more than luck.''

Newdow has wrapped himself in the Constitution. A guitar player, he's recorded a CD of songs about his pledge fight. He's set up a Web site,www.restorethepledge.com, to trumpet his point of view. He's even considering taking on the Supreme Court justices for how they start each session with the pronouncement, ``God Save this Honorable Court.''

Through all the publicity, his daughter is doing well in school, where Newdow still regularly helps out in the classroom. She plays soccer, enjoys gymnastics and, according to Banning, roots for her father despite all the family strife.

But Banning is ready for Newdow's crusade against the pledge to come to a close in the Supreme Court.

``Every little girl wants her daddy to be a shining star in her eyes,'' said Banning, who has assured her daughter Newdow is exercising important rights. ``But I think, and I don't want to sound melodramatic about it, this is where it ends.''