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A Sacramento County, Calif., family court judge has told Michael Newdow, the victor in the 9th U.S. Circuit Court of Appeals’ Pledge of Allegiance ruling, that he cannot continue to litigate the case on behalf of his daughter. The latest procedural wrinkle in a case that sparked a furor across the country could moot the decision. At the very least, it means a case about the use of the phrase “under God” will now turn on intriguing questions of parental rights. Superior Court Judge James Mize told Newdow, an avowed atheist whose standing to challenge the Pledge rested on the fact that he has a daughter in elementary school, that he could not bring the case on behalf of his daughter — even if she is not named — because doing so would risk subjecting the girl to scorn. During a hearing last month, Mize told Newdow that whether he still has standing to litigate the case would be up to the 9th Circuit. Mize released a portion of the transcript last week at the request of The Sacramento Bee. Mize acted at the request of the girl’s mother, Sandra Banning, who was granted sole legal custody in February. Mize ruled that entering the child in a lawsuit, either directly or indirectly, would be a major decision requiring the consensus of both parents. Banning has sought to disassociate her daughter from the case, and Mize’s decision is at least a partial victory. Mize cited the possibility of psychological, and even physical, damage if the girl were associated with the suit. Mize said that even if the suit involved racial desegregation in the South, for example, he might not allow the child to be named if one parent was concerned about the taunts the child might have to endure — “even if that argument is at least as noble, if you will, as your argument that there should be a non-establishment of a particular religion or of a deism, if you will, in the schools,” Mize said during the Sept. 25 hearing. Following the 9th Circuit’s June ruling, Banning asked the court to let her intervene in the case to argue that Newdow does not have the right to bring a case on behalf of their child. In interviews, Newdow has stated that he considers the case to be about his rights as a parent, and not something his daughter is particularly concerned with. The 9th Circuit has not ruled on Banning’s motion, but has ordered both sides to brief the question of whether the loss of custody means Newdow has no standing to bring the case. The three-judge panel asked: “Whether under California state law the award of sole legal custody to one parent deprives the other of standing to object on constitutional grounds to the contents of the school’s curricula, observances and ceremonies affecting the child’s education and religious upbringing? If the answer is yes, is the California rule constitutional?” The Oct. 9 order gave the parties 28 days to respond. In her 9th Circuit motion, Banning argues that if the ruling stands, it will mean “a lifetime of public scorn” for her daughter. The state of California and the girl’s school district have asked the panel to rehear the case, or for a rehearing by an en banc panel. Litigants who seek to intervene at such a late stage normally have a steep hill to climb, but Banning is arguing that her reasons are compelling and there will be little harm to the parties. “Newdow may view himself as prejudiced by losing the ability to represent his daughter’s legal interests,” wrote Banning’s lawyer, Foley & Lardner partner Stephen Parrish. “But that ability was taken from him already by the custody order granting Banning sole legal custody over their daughter.” The 9th Circuit challenge to the Pledge of Allegiance was filed long before Banning was granted sole legal custody. It was argued in March, one month after Newdow lost joint custody. The interest in the case remains intense. The amicus curiae briefs now fill a box in the clerk’s office, but the panel has been refusing to consider them.

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