legal custody

In 1892 a national magazine proposed that schoolchildren recite a pledge of allegiance to the flag. Congress first codified rules for the Pledge in a 1942 joint resolution and amended the text twelve years later to add the words "under God." California law requires every public elementary school to begin each day with appropriate patriotic exercises. The Elk Grove Unified School District satisfies the requirement by directing that each elementary class recite the Pledge once daily, while permitting students who object on religious grounds to abstain. Michael A. Newdow, an atheist whose daughter was then enrolled in kindergarten in the district, filed suit in March 2000 in the United States District Court for the Eastern District of California against Congress, the President, the State of California, the School District, and its superintendent. The complaint sought a declaration that the 1954 amendment adding "under God" violated the Establishment and Free Exercise Clauses and an injunction against the district's daily recitation policy. The district court adopted a magistrate judge's recommendation and dismissed the complaint on July 21, 2000. A divided Ninth Circuit panel reversed, holding that Newdow had standing as a parent and that both the 1954 Act and the district policy violated the Establishment Clause. After that decision, Sandra Banning, the mother of Newdow's daughter, moved to intervene or dismiss, stating that she held sole legal custody and that the child was a Christian who had no objection to reciting or hearing the Pledge. On September 25, 2002, a California Superior Court enjoined Newdow from including his daughter as a party or suing as her next friend. The Ninth Circuit subsequently held that Newdow retained Article III standing as a noncustodial parent under California law. In February 2003 the court amended its opinion to omit any determination of standing to challenge the 1954 Act itself. At a September 2003 hearing the Superior Court announced that the parents now share joint legal custody but that Banning makes the final decisions if they disagree. The Supreme Court granted certiorari to consider both Newdow's standing and the First Amendment question.

Joan Stanley and Peter Stanley lived together intermittently for 18 years, during which time they had three children. When Joan Stanley died, Peter Stanley lost not only her but also his children. Under Illinois law, the children of unwed fathers become wards of the State upon the death of the mother. Accordingly, upon Joan Stanley’s death, in a dependency proceeding instituted by the State of Illinois, Stanley’s children were declared wards of the State and placed with court-appointed guardians. Stanley appealed. He claimed that he had never been shown to be an unfit parent. Since married fathers and unwed mothers could not be deprived of their children without such a showing, he had been deprived of the equal protection of the laws guaranteed him by the Fourteenth Amendment. The Illinois Supreme Court accepted the fact that Stanley’s own unfitness had not been established, but rejected the equal protection claim, holding that Stanley could properly be separated from his children upon proof of the single fact that he and the dead mother had not been married. Stanley’s actual fitness as a father was irrelevant. The decision is reported at In re Stanley, 45 Ill. 2d 132, 256 N. E. 2d 814 (1970). Stanley presses his equal protection claim in the United States Supreme Court. The State responds that unwed fathers are presumed unfit to raise their children. The Supreme Court granted certiorari, 400 U. S. 1020 (1971), to determine whether this method of procedure by presumption could be allowed to stand in light of the fact that Illinois allows married fathers — whether divorced, widowed, or separated — and mothers — even if unwed — the benefit of the presumption that they are fit to raise their children.