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WASHINGTON — The controversial challenge to the words “under God” in the Pledge of Allegiance leads the lengthy list of cases the Supreme Court will consider at its private conference Sept. 29. The court’s first closed-door working session since recessing for the summer in June is known as the “long conference” because it will deal with the hundreds of cases that have piled up over nearly three months. The justices will decide whether to add any of the cases to its docket for argument and decision later in the term that begins Oct. 6. Along with the Pledge cases — which have taken numerous twists and turns, even as recently as the past two weeks — the conference agenda includes numerous novel criminal cases including one from South Carolina in which the court is asked to determine whether a woman who uses cocaine during her pregnancy can be prosecuted for homicide for giving birth to a stillborn child. The latest development in the Pledge cases came Sept. 11, when the challenger, Sacramento atheist Michael Newdow, regained partial legal custody of his daughter, on whose behalf he challenged the wording of the Pledge. The ruling will likely boost the chances that the Supreme Court will grant review in his controversial First Amendment challenge. Sacramento County Superior Court Judge James Mize told Newdow and his daughter’s mother, Sandra Banning, that Newdow, who was stripped of legal custody in February 2002, would regain joint custody. The exact wording of the order is being worked out by both sides. Newdow’s adversaries at the Supreme Court, including the government, led by Solicitor General Theodore Olson, and former Solicitor General Kenneth Starr, who represents Banning before the Supreme Court, have relied heavily on Newdow’s lack of custody. They have argued to the Supreme Court that Newdow does not have legal standing to challenge the recitation of the Pledge in public schools on behalf of his daughter. Many experts have speculated in recent weeks that the Supreme Court would seize on the standing issue as backing for a summary dismissal of the case and thus avoid having to rule on the merits of Newdow’s thorny challenge. But a change in Newdow’s status could make it harder for the court to do that. “This certainly gives him a better shot at standing,” says Elliot Mincberg, legal director of People for the American Way, who has followed the case closely. “The court might have liked to avoid the issue, but that may be harder to do now.” On Sept. 9 Newdow, who is both a licensed physician and a lawyer, also filed a highly unusual request suggesting that Justice Antonin Scalia recuse himself from participating in the case. In January, Scalia made public remarks indicating his view that the way to remove “under God” from the Pledge was through legislation. The Pledge cases are United States v. Newdow, No. 02-1574, Elk Grove Unified School District v. Newdow, No. 02-1624, and Newdow v. United States, No. 03-7. Lawyers in the case say it is unlikely that the custody order will be finalized in time for the Sept. 29 court conference. But Newdow has already written to the court to inform the justices of the development and to suggest that standing is no longer a viable issue. Mincberg, like other lawyers knowledgeable about the case, says the precise impact of the custody decision would depend on how much actual authority Newdow is given over his daughter’s education and other aspects of her life. Sacramento lawyer Dianne Fetzer, who is representing Banning in the custody battle, declines comment, referring inquiries to another lawyer on the team, Paul Sullivan, a partner at Foley & Lardner’s D.C. office. Sullivan confirms that the judge had rendered an opinion in the custody case. But Sullivan declines to predict the ruling’s impact on the Pledge case, because, he says, in its final form “it may contain more restrictions than one would expect when a judge grants joint custody.” Starr, a partner in the D.C. office of Kirkland & Ellis who wrote Banning’s brief challenging Newdow’s standing before the Supreme Court, did not return phone calls seeking comment. For his part, Newdow says he does not anticipate that anything written into the custody order would undercut his claim that he has a sufficient level of joint custody to achieve standing. “All the definitions are vague, but the judge said he was awarding joint legal custody,” said Newdow in an interview. “When I asked if I could inform the Supreme Court about it, the judge said yes.” Newdow, who was never married to Banning, objects as strongly to what he calls the “egregious” family law system as he does to the wording of the Pledge. Their daughter is 9 years old. The appeals stem from a series of rulings by the Ninth Circuit U.S. Court of Appeals. In June 2002, a three-judge panel agreed with Newdow that the Pledge violates the establishment clause of the First Amendment because of the 1954 federal law that added the words “under God” to its text. After the ruling, Banning notified the appeals court that Newdow did not have legal custody of his daughter and that, as the sole custodial parent, she had no objection to her daughter reciting the Pledge with its reference to God. Backing the mother up, the Bush administration filed a supplemental brief arguing that Newdow lacked standing to mount his challenge. The Ninth Circuit then ruled on the standing question. The three-judge panel held that Newdow, in spite of his noncustodial status, had standing in his own right to challenge an “unconstitutional government action affecting his child.” On the merits, the panel later amended its first decision to limit its finding of unconstitutionality to reciting the Pledge in schools — not the wording of the Pledge in general. This narrowing of the original ruling triggered Newdow’s appeal to the Supreme Court, while the federal government and the school board challenged the notion that the Pledge was unconstitutional at all. The Justice Department’s brief, filed last month, asserts that Newdow “has no legal right to sue as his child’s next friend. . . . That prerogative rests exclusively with the mother, who has sole legal custody.” The brief, signed by SG Olson, goes on to say, “If, as the non-custodial parent, Newdow believes the mother’s educational decisions are causing harm to the child, the proper remedy is for him to resort to family court and seek a modification of the custody agreement.” Starr’s brief on Banning’s behalf also stresses that “Sandra Banning has sole custody of her daughter. Accordingly, Ms. Banning, not Newdow, has the right and responsibility to decide ultimately where her daughter goes to school and what education her daughter should receive.” In a footnote, Starr’s brief indicates that a trust fund has been started “to help defray the costs and expenses incurred by Ms. Banning in connection with this litigation.” Ironically, because of the odd posture of the case, with both sides appealing different aspects of the Ninth Circuit ruling, Newdow’s custody victory may have been good news to his adversaries who want the high court to confront the core issue and reverse the circuit ruling against the Pledge. “We questioned the standing, too,” says the Elk Grove 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.” By the same token, some of those who agree with Newdow on the Pledge issue and want to protect the Ninth Circuit’s ruling from possible high court reversal are still hoping the Supreme Court will not take the case. “There are a lot of reasons for the Supreme Court to deny review besides standing,” says Ayesha Khan, legal director of Americans United for Separation of Church and State. Her group argues that the Ninth Circuit ruling against the Pledge faithfully follows Supreme Court precedent and does not warrant review. She also argues that the United States is not properly a party, because the latest Ninth Circuit ruling only pertains to the recitation of the Pledge in California public schools. As for Newdow’s suggestion that Scalia recuse, Newdow cites press accounts of Scalia’s Jan. 12, 2003, appearance at a Religious Freedom Day rally in Fredericksburg, Va., sponsored in part by a local chapter of the Knights of Columbus. The Roman Catholic organization has filed an amicus curiae brief in the Pledge cases and has been a leader in the fight to retain the wording of the Pledge. Scalia was reported to have said at the event that removing references to God from public life was “contrary to our whole tradition.” Scalia also spotted a protester in the audience who held a sign that urged, “Get religion out of government.” Scalia said he had “no problem with that philosophy being adopted democratically. . . . If the gentleman holding the sign would persuade all of you of that, then we could eliminate ‘under God’ from the Pledge of Allegiance. That could be democratically done.” Newdow asserts that Scalia’s specific and disapproving reference to the Pledge litigation makes it necessary for Scalia to recuse. He cites both judicial canons and federal law which require judges to recuse if their impartiality “might reasonably be questioned.” Newdow states that Scalia “indicates that he has already applied his establishment clause analysis to the case at bar and reached his conclusion before ever reading the briefs or hearing the arguments.” Any response to Newdow’s motion is up to Scalia, since recusal suggestions are treated as communications with individual justices, not as motions to be voted on by the entire court. Newdow said in an interview he is hopeful that Scalia will recuse. “It would be cool if he does. God would be speaking.”

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