The nation was surprised in June when the Ninth Circuit Court of Appeals agreed, ruling it was unconstitutional for school-children to recite the pledge in class. Members of Congress gathered, hands over hearts, to say the pledge on the Capitol steps, while disgruntled callers left threatening messages on Newdow’s home answering machine. (He later incorporated them into a folk song on a self-recorded CD.) The school district appealed, contending the pledge is not a prayer but a nod to the nation’s religious history. This Wednesday an eight-member Supreme Court will take up the case (Newdow persuaded Justice Antonin Scalia to recuse himself after commenting publicly on the issue). Newdow also received permission to argue the case himself. Court watchers give him a slim shot at success–or at least winning a 4-4 tie that would leave the Ninth Circuit ruling in place and keep 10 million children in nine Western states pledge-free. If Newdow prevails outright and the court decides “under God” must go, the decision is sure to ignite the simmering culture wars just weeks before the political conventions.
For Newdow, the case is personal. It’s inextricably bound up in a bitter custody dispute over his daughter, a 9-year-old with nearly all A’s on her latest report card. She shuttles between the homes of her parents, who never married. The court will have to decide whether sharing custody with the girl’s mother, Sandy Banning, damages Newdow’s legal “standing” to bring the case. With the help of a trust fund, Banning has hired former independent counsel Ken Starr to file an amicus brief arguing against Newdow. “This child is being raised in a Christian home,” says Banning, who is now launching a foundation to promote understanding about civic references to God. “I do not object to her saying the pledge,” she says. “She does not object to it.” The girl now recites the pledge every day in class. Despite the legal tussles, she maintains a warm relationship with her father; he still has her handmade Valentine on the kitchen counter well into March.
Newdow is adamant that the case isn’t about his dispute with Banning, but acknowledges that the agonizing custody proceedings are a distraction. “I’m not nearly as prepared as I could be,” he says. Even so, he predicts he’ll win 8-0. “I could screw up terribly and I’m still going to win,” he says. He’s consulted with experienced Supreme Court lawyers and conducted 10 mock trials at law schools around the country. In one practice session last week at the University of Maryland, the “judges” cautioned the often excitable Newdow to keep his argument low-key and avoid interrupting the justices. The tips could come in handy: Newdow is already embroiled in another case contesting prayers offered at the 2001 Inauguration of George W. Bush.
