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Washington-Michael Newdow has regained partial custody of his daughter, likely boosting the chances that the Supreme Court will take up his challenge to the words “under God” in the Pledge of Allegiance. Newdow last year won a partial victory in the 9th U.S. Circuit Court of Appeals. He is appealing the limit of the decision to schools. The government is challenging the underlying decision. Sacramento County, Calif., Superior Court Judge James Mize on Sept. 11 granted joint custody to Newdow and his 9-year-old daughter’s mother, Sandra Banning. Newdow’s adversaries at the Supreme Court used his lack of custody to argue that he did not have standing to challenge the recitation of the pledge in public schools on behalf of his daughter. Many experts have speculated that the court would seize on the standing issue as a way to dispose of the case without ruling on the merits of his challenge. “This certainly gives him a better shot at standing,” said Elliot Mincberg, legal director of People for the American Way Foundation, who has followed the case. In the 9th Circuit In June 2002, a 9th Circuit panel agreed with Newdow that the pledge violates the establishment clause because of the words “under God,” which were added by law in 1954. Banning later notified the court that as the sole custodial parent she had no objection to her daughter’s saying the pledge as it stood. The 9th Circuit held that Newdow, in spite of his noncustodial status, had standing to challenge an “unconstitutional government action affecting his child.” It later amended its first decision to limit a finding of unconstitutionality to reciting the pledge in schools, not the wording of the pledge. That triggered Newdow’s Supreme Court appeal. The federal government and Newdow’s school board challenged the notion that the pledge was unconstitutional at all. The odd posture of the case means Newdow’s custody victory may be good news to his adversaries who want the high court to confront the core issue and reverse the ruling against the pledge. “We questioned the standing, too,” said the Elk Grove, Calif., school district’s lawyer, Terence Cassidy of Sacramento’s Porter Scott Weiberg & Delehant. “But from the viewpoint of school districts around the country, we want to resolve the issue once and for all.” Newdow, a physician and a lawyer, is handling the cases pro se. They are on the court’s Sept. 29 conference agenda, at which it will review petitions for certiorari. U.S. v. Newdow, No. 02-1574, Elk Grove Unified Sch. Dist. v. Newdow, No. 02-1624, and Newdow v. U.S., No. 03-7.

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