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It’s Halloween in Sacramento, Calif., and Michael Newdow is driving along suburban roads in search of a costume to wear to a party with his daughter. He pops in a CD: It’s Newdow himself singing atheist folk songs he has written in his spare time. Two and a half weeks earlier, the U.S. Supreme Court granted review of Newdow’s case challenging recitation of the words “under God” in the Pledge of Allegiance at his daughter’s public school. At this stage most Supreme Court litigants would have begun to clear their calendars. There are arguments to craft and briefs to write. Yet on this day the 50-year-old Newdow, who wants to be his own lawyer at the high court, concedes he hasn’t thought about or worked on the Pledge case since before the Court acted Oct. 14 — and he doesn’t plan on starting for a while longer. “It’s hard to concentrate,” Newdow says. His distraction is his ongoing battle for joint custody of his 9-year-old daughter — on whose behalf he questioned the Pledge. “This thing has shattered my life.” Newdow is equally consumed with maintaining his status as a “perfect dad,” as he calls himself. So instead of working on briefs, Newdow is rooting through racks at a local thrift shop looking for costume ideas. The man whose lawsuit could make constitutional history tries on a purple sequined bra and a flowered skirt. He decides to go to the party as a belly dancer. Usually, the personal stories of Supreme Court litigants recede into the background as momentous constitutional issues crystallize in briefs and oral arguments. But in the case of Elk Grove Unified School District v. Newdow, No. 02-1624, Newdow’s tangled tale remains front and center. In part, that is because his ongoing custody dispute is key to whether Newdow has standing to challenge the Pledge — an issue the Court has asked the parties to brief and argue. The Court could easily avoid the Pledge issue altogether by viewing the custody matter as too unsettled to grant Newdow standing. But Newdow has also kept himself at the forefront by insisting, against the advice of many of his natural allies, that he should be the one to stand before the justices and present the case. His motion to argue the case himself is pending before the Court, and his quirky demeanor could lead the justices to appoint someone else to argue for him. In some of his filings, for example, atheist Newdow refers to himself as “Rev. Dr. Michael Newdow” of the oddly named “First Amendmist Church of True Science.” Newdow’s solitary persistence has paid off so far. He argued and won before the 9th U.S. Circuit Court of Appeals. At the Supreme Court, Newdow has already picked off one likely opponent — Justice Antonin Scalia — by taking the risky step of asking Scalia to recuse. Scalia, who had criticized the Pledge challenge in a speech in January, took himself out of the case. Newdow has a far better chance of winning before an eight-member Court. Yet Newdow still feels shunned by civil liberties organizations, which worry that his loose-cannon style and his preoccupation with the custody case will backfire before the nation’s highest court. “They’re afraid that here’s this guy taking on this important case, and they think he’s a lunatic,” Newdow says angrily. More quietly, he adds, “They may be right.” A FUNDAMENTAL DIVIDE Sandra Banning, the mother of the daughter in question, prefers to describe Newdow in less provocative terms. “Life is complicated with Michael,” Banning says calmly over coffee near her home in nearby Elk Grove. “He is intense, and he can be obsessive.” The two live 20 minutes from one another, but are light-years apart in their personal views about religion and, thus, the constitutional issue at hand. Banning, 44, describes herself as a born-again Christian. Her relationship with God has carried her through years of combat with Newdow and now through the highly public retelling of their story, she says. “I know it sounds like The National Enquirer. I say, ‘Lord, you deal with it.’” Her daughter — whose name has not been made public in connection with the case — was born in Sacramento in 1994 at a time when, as Banning puts it, “I was not walking with the Lord.” She is referring to the fact that she and Newdow never married. She offers no other details, but mentions offhandedly that Newdow has accused her of raping him in the sexual encounter that resulted in the birth of their daughter. She dismisses the allegation with a wan smile. It turns out that Newdow has made the rape charge throughout the custody litigation, and he called it “date rape” in his Halloween interview. “I didn’t love her, and I told her that,” he says. The girl was conceived during a camping trip at Yosemite, Newdow says. Sacramento Superior Court Judge James Mize, in his latest oral ruling in the custody case on Sept. 11, made short shrift of what he described as Newdow’s “incredibly disingenuous” rape claim. “If she wanted to have sex with you and you didn’t want it,” the judge admonished Newdow, “you would have easily been able to say, ‘I’m sorry, I’m out of here. Goodbye.’ But you didn’t do that.” During the daughter’s early years, Banning lived in Sacramento in a house owned by Newdow. But when the girl turned 5, Newdow asked the mother and daughter to move to Florida, where he had relocated. She refused, also rejecting Newdow’s suggestion that the girl attend kindergarten in both Florida and California, commuting back and forth every two weeks. Around that time, Newdow filed his first challenge to the Pledge in federal court in Florida. But with the girl not living in Florida at the time, it was dismissed for lack of standing. To keep Newdow from persisting in his bicoastal schooling plan, Banning went to court in California and won a temporary order giving her sole physical custody. Newdow returned to California and in March 2000 filed his Pledge challenge again. Banning won sole legal custody in February 2002. During this period, Banning says, Newdow displayed a “polite indifference” toward her growing Christianity. “It didn’t matter to him. The passion the world is seeing now is new to me. It’s not the Mike I knew.” Banning claims that she did not realize their daughter was a direct (though unnamed) plaintiff in the anti-Pledge lawsuit until the explosive day in June 2002 when the 9th Circuit ruled in Newdow’s favor against the Pledge. Newdow disputes that, asserting that she was well aware of what he was doing, and noting that she opposed his request to allow the girl to attend his oral arguments before the 9th Circuit. Judge Mize permitted the girl to attend the arguments — and Newdow wants her to attend the Supreme Court argument as well, over Banning’s opposition. Banning insists that in a case like this, Newdow should not be allowed to file a suit without her permission, especially when her and her daughter’s view of the issue is so different from Newdow’s. “The first school day after that ruling,” she says, “my daughter led her third-grade class in saying the Pledge. She does not have a problem with it.” She adds that, when the girl is with her, “we pray at meals, we go to church.” She helps her mother mind young children at their church’s Sunday school. Soon after the 9th Circuit ruling, through contacts made by her minister, Banning engaged Foley & Lardner to represent her, and that firm, in turn, hired Kirkland & Ellis heavyweight Kenneth Starr to challenge Newdow’s standing before the U.S. Supreme Court. Banning, who runs a small home business offering administrative support services to local companies, says the hefty bills from the law firms come in frequently. She has not paid any of them. Newdow claims that Banning’s challenge to his standing is being heavily funded by the Christian right, but she denies it. A small trust fund established to help her with bills has a grand total of $1,100 in it, she says. Newdow claims that based on information in recent court filings, Banning’s legal fees in the Pledge case amount to more than $675,000 so far. But Banning is not keeping count. “I three-hole punch the bills and put them in a binder,” she says. “I look at them and say, ‘Oh, Lord.’ I pray over them.” Starr could not be reached for comment. Paul Sullivan, a partner in Foley’s D.C. office, would not confirm Newdow’s claim about the amount of Banning’s legal fees. He says a substantial fee by a public relations firm hired last year may be included in whatever total Newdow described. Sullivan confirms that the legal representation of Banning is not regarded as a pro bono effort. Sullivan says a fund-raising firm, Smith Fairfield Inc. of Alexandria, Va., has been hired recently to help raise money to pay Banning’s legal fees. Noting the small amount that is in the trust fund so far, Sullivan says that before hiring the firm, “our fund-raising effort was not as successful as anticipated.” DIFFERING OVER RIGHT TO SUE Judge Mize in September agreed with Banning that Newdow should not have filed the suit against the Pledge without her permission. The judge drew an analogy to the children who were named in school desegregation cases in the 1950s. If a divorced parent in those cases went to a judge saying he or she did not want the child to participate, Mize said, “I would have said � on something that important, it’s something both parties … have to agree upon.” But in the separate proceeding on the Pledge, the 9th Circuit panel focused solely on the fact that Newdow is the girl’s biological father in determining that he had standing to sue. Newdow shrugs it off as a nonissue. He did not need Banning’s permission to sue on his daughter’s behalf, he insists. “Do I have veto power over her decision to get a dog, or a swimming pool in the back yard?” he asks. Besides, he says, no matter what religious activities await the child at Banning’s house, at his house there are none — and the state should not be taking sides in the parents’ disagreement over religion. “I have the right to see that my daughter is not indoctrinated,” he says. “Every day in school, by reciting the Pledge, they are telling my daughter that her father is wrong and her mother is right.” This tendency on Newdow’s part to blend the constitutional issue with his grievances against Banning is what worries those who want Newdow to succeed. “The Supreme Court is not going to want to hear him complain about the mother,” says one veteran Court advocate. Banning, from her perspective as the mother, agrees. “Michael is free to file a lawsuit. Let him be all that he wants to be. But he should do it on his own. Just leave the little girl out of it.” FAMILY COURT SYSTEM In his home, however, Newdow’s daughter is never far from view. On the wall in front of his desk is a big portrait of the girl, smiling wide, and next to his computer is a card from her with the message “I love you so much I can’t even say it.” It infuriates Newdow that he should have to litigate at all to see his daughter exactly half of the time. “It is my fundamental constitutional right to be with her,” he shouts. “How would you like it if the government told you that you could exercise your fundamental right of a free press only three days a week?” His most fervent goal, he says, is to expose the unconstitutionality and the futility of the family court system. “It has taken two parents who were good friends,” he says, “and turned us into two people who don’t talk to each other. We’ve had to piss away thousands of dollars in the process. It has ruined my life. I am at a loss to see how it has benefited anyone.” Newdow once had a lucrative medical career. A graduate of Brown University and UCLA medical school, he says he ran a summertime health clinic at the New Jersey shore in the 1980s. Profits from that period are the source, he says, of his fast-dwindling savings. Newdow graduated from the University of Michigan Law School in 1988, but did not take the California bar until last year. Since then, Newdow says, he has earned almost no money at all, working at home full time on his custody and Pledge battles. “I’m sorry I ever went to law school, to be honest,” he says. “Anyone can do this stuff. For a filing fee, you can affect 280 million people.” As a doctor, Newdow wanted to change medicine — just as he wants to change family law and First Amendment law now. When he challenged traditional medical practices, older physicians, he says, would tell him, “You’re right, but … ” Now he hears the same phrase in connection with his custody case and the Pledge battle. “ That’s my life: ‘You’re right, but … ‘ I say, if I’m right, just do it.” AN APPEAL OF CUSTODY RULING What occupies Newdow’s attention now is drafting an appeal to Mize’s September ruling in the custody case. The oral ruling could hold the key to the standing issue. Mize dealt with the kinds of claims and counterclaims commonly raised when divorced parents are at war: the time several years ago when he let the girl go unaccompanied into an airport ladies’ room, another when father and daughter crossed a street without holding hands. Newdow claims Banning has interfered with his legally granted time with the daughter more than 50 times. Ruling from the bench, Mize saw little wrong with how Newdow handled those and other incidents. But he faulted Newdow for being unable to tolerate Banning’s criticism or the questioning of the court. “As you sit here today with the attitude you have in this case and courtroom, you are not able to co-parent now. It’s really clear,” said Mize, according to the transcript on file with the Supreme Court. Mize granted Newdow some additional time with the girl — two three-day weekends per month instead of two two-day weekends — but the girl is with Banning during the week. They split vacation periods. Mize also renamed the arrangement “joint legal custody,” though he said Banning would still have the final say on issues of education and health. In spite of the additional time the judge granted to him, Newdow sees nothing good in the ruling, because it leaves him with his daughter less than 50 percent of the time. He seems determined to carry his campaign against family law forward, even as he juggles the Pledge case at the same time. “I’d give up the [Pledge] case in a second to be with my kid,” he says without hesitation. “This system has destroyed my life. I just want to be with my kid.” ‘ESTABLISHMENT CLAUSE ACTIVIST’ Newdow calls himself “an establishment clause activist, not an atheist activist.” He first considered his challenge after studying a dollar bill while waiting in a checkout line. “I looked at ‘In God We Trust’ and thought, ‘This is absurd,’” he says. He asked some law professor friends about the issue, but they discouraged him from challenging minor references to a deity. But as he checked into it further, Newdow saw plainly that of all such mentions, the words “under God” in the Pledge were most vulnerable to attack. The words were inserted by Congress in 1954 with clear religious intent, he says, and reciting the Pledge is a form of active affirmation — unlike the more passive handling of money. The fact that he saw the Pledge’s vulnerability — while others did not — bolsters Newdow’s view that he should argue the case himself. “I’m not sure experience makes much difference. I know this stuff pretty well, and I think you need to be an atheist to make the argument.” Newdow expects to win his case 8-0, or at least 6-2. Pinned to a bulletin board in his attic workspace are photographs of all nine justices, labeled with their names — and religions. He has no hesitation fulfilling the worst fears of his opponents: He says that the day after he wins, he will launch a challenge against other everyday government-sponsored mentions of God as well. He already has challenges pending against congressional chaplains and the Rev. Franklin Graham’s invocation, full of Christian references, at President George W. Bush’s 2001 inauguration. “Remember, when I argue this case, I will be walking into a Court where the marshal says, ‘God save this honorable Court,’” he notes. “I should challenge that.” But then, in a rare moment of strategic caution, Newdow adds, “Well, probably I won’t.”

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