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Declining a chance to bow out of the controversial Pledge of Allegiance decision, the 9th U.S. Circuit Court of Appeals on Wednesday ruled that a child custody battle will not upend its ruling that the use of the phrase “under God” violates the Constitution. In an order that breaks new legal ground in its own right, the court held that Michael Newdow, an atheist who challenged the Pledge on his daughter’s behalf, can still pursue his claims even though he lost legal custody of his child in February. “We hold that a non-custodial parent, who retains some parental rights, may have standing to maintain a federal lawsuit to the extent that his assertion of retained parental rights under state law is not legally incompatible with the custodial parent’s assertion of rights,” wrote Senior Judge Alfred Goodwin, author of the original Pledge decision. And that was the case here, Goodwin wrote. “We hold that [Sandra] Banning has no power, even as sole legal custodian, to insist that her child be subjected to unconstitutional state action.” Banning, who has opposed Newdow’s efforts, is the mother of his daughter. Judge Stephen Reinhardt and Senior Judge Ferdinand Fernandez — who dissented from the original decision — joined in the order. Fernandez wrote separately to point out that he did not agree with statements made by Goodwin in the order supporting the original decision. If the panel found that Newdow had no standing, it could have vacated its decision in Newdow v. U.S. Congress, 292 F.3d 597, extinguishing once and for all a firestorm of criticism that broke out when the July decision was released. Instead, Wednesday’s order gives the full court the chance to consider whether to rehear the case with an 11-judge en banc panel. The court denied the motion of the girl’s mother to intervene. Banning argued that she supports the reference to God in the Pledge and did not want her daughter associated with the case because it would subject her to “a lifetime of public scorn.” In September, Sacramento Superior Court Judge James Mize ruled that Newdow could not include his daughter in the suit in any way, but left it up to the 9th Circuit as to whether Newdow could continue without her. Stephen Parrish, a Foley & Lardner partner who represented Banning, said his client was not unhappy with the ruling, since her daughter is no longer the basis of Newdow’s standing in the case. “The objective was achieved, at least indirectly,” Parrish said, though he did say the court took a liberal view of the rights of a non-custodial parent. The court issued two other orders in the case Wednesday, clearing the decks of all extraneous issues. In an order authored by Fernandez, the court issued another novel decision — that the U.S. Senate has no right to intervene in challenges to the laws it writes. Although the court said the Senate may properly be involved when its power or authority under the Constitution is challenged, that is not the case here. In an unpublished order, the court denied the state of California’s motion to intervene in the suit. The case became the focus of some controversy during the recent gubernatorial election, when challenger Bill Simon seized on the fact that the state did not respond to a summons and used it to allege that Gov. Gray Davis shirked his responsibility to defend the Pledge. Davis immediately vowed to appeal the case, but the court refused, saying the state’s “purported appearance in this appeal is rejected.” The governor responded angrily to the decision in a news release Wednesday: “If the Supreme Court can begin each day invoking God’s blessing, then surely America’s school children can start with the Pledge of Allegiance. The court got the first decision wrong. They should not compound that error by silencing California’s voice,” Davis said. So far, the court has turned aside scores of would-be amicus curiae briefs, but did invite the Senate to submit its motion to intervene as an amicus. Immediately following the decision, the Senate condemned it with a 99-0 vote.

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