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The mother of the second-grader at the center of last month’s controversial Pledge of Allegiance decision said Thursday that she is Christian and doesn’t mind her daughter reciting the phrase “under God.” In a development that could be a gigantic monkey wrench as the 9th U.S. Circuit Court of Appeals considers whether to rehear the case, Sandra Banning said she was shocked by the decision and has hired lawyers with the hope of seeing it reversed. “I was concerned that the American public would be led to believe that my daughter is an atheist or that she has been harmed by reciting the Pledge of Allegiance,” Banning said in a statement Thursday. The case was brought by Michael Newdow, an avowed atheist who claimed in court papers that his daughter was harmed by the morning recitation of “under God” in the Pledge of Allegiance. Last month’s 2-1 decision, which brought widespread public outcry, would bar the phrase at schools throughout the nine states within the 9th Circuit. One important aspect of the ruling was a finding that Newdow had standing to challenge the use of the phrase because his daughter was enrolled in a Sacramento, Calif.-area elementary school. But if Banning is able to show the court that she has a compelling interest in raising her child her own way and does not want her to have any part of the case, constitutional questions concerning the separation of church and state may be moot. Hastings College of the Law Professor Vikram Amar said Senior Judge Alfred Goodwin’s discussion of standing focused on the father’s rights as a parent to raise his daughter as he saw fit, not the daughter’s rights per se. “As long as there’s no family law issue about who actually is the relevant parent, it’s not clear to me what the mother would be arguing, although everything may turn on custody and the like,” Amar said. But family law could be important, according to one expert. If the two share custody, said family law lawyer Esther Lerner, both parents are supposed to work together when the daughter’s interests are implicated. “If they have joint legal custody, then they must confer about all matters concerning health, education and welfare,” Lerner said. Goodwin’s opinion in Newdow v. U.S. Congress, 02 C.D.O.S. 5700, did not discuss Newdow’s marital status or any custody agreement. “Joint legal custody would give both parents the right to make these decisions jointly, and if they disagree, that’s something that has to be dealt with,” Lerner said. Newdow said Thursday that Banning was aware of the suit. “The case has been fully known to everybody since I filed it,” he said. But Banning’s lawyer said there was nothing she could do to stop the suit. “He went off and did it on his own,” said partner Paul Sullivan, of the Washington, D.C., office of Foley & Lardner. Since the decision was released, Newdow has stressed in interviews with the press that the case was his, not his daughter’s, and often turned aside questions about her. “I don’t want to say anything about my daughter because it’s not her case, it’s my case,” he said Thursday. He acknowledged that he does not have “50 percent custody” of his daughter, adding that he hoped to change that. He does have visitation rights. “I’m trying to overturn the whole family law system, because it’s unconstitutional,” he added. Newdow said he and Banning were never married. Sullivan said Banning’s sole intent is to clear up the record that the second-grader, who he said attends Sunday school, is not an atheist. Otherwise, “People will point to her and say, ‘That’s the girl who had the Pledge changed,’” he said. Banning released a statement Thursday saying her daughter “expressed sadness” at the decision. “Because of her response and the potential impact of this case on her life, I have the responsibility as her mother to speak out, to set the record straight or clear up any misrepresentations,” Banning said. Furthermore, Banning established “The Pledge Defense Fund” to pay for her legal bills. The fund is taking donations through Foley & Lardner. Banning said she is a member of Calvary Chapel of Laguna Creek, in Elk Grove, Calif., which bills itself as a non-denominational church. Whether Banning will intervene in the case is unclear. Though Banning said in her statement that she wanted to see the decision reversed, Sullivan said setting the record straight without necessarily overturning the decision would be satisfactory. “Our only concern here — and it’s a rather narrow one — is that the court not misconstrue the pleadings and infer that the daughter here is an atheist,” Sullivan said.

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