This is a repost from March 14th, 2009 with slight edits and an update on the case.
A couple months ago, atheist Michael Newdow filed a lawsuit against prayer being used in Barack Obama‘s Inauguration ceremony.
Specifically, Newdow and the other plaintiffs were against:
- The addition of “so help me God” to the presidential oath of office (said by Chief Justice John Roberts) which violated the Establishment and Free Exercise Clauses of the First Amendment.
- The government-sponsored use of any clergy at all during the inauguration which violated the Establishment and Free Exercise Clauses of the First Amendment
The lawsuit was temporarily halted by United States District Judge Reggie Walton and the Inauguration went ahead with the prayers as planned.
Now, that lawsuit has come to a more permanent end.
On Thursday, Judge Walton issued an order dismissing the entire case (PDF). It seems to also put a halt to further action by Newdow:
Upon review of the parties’ written submissions, the Court finds that the plaintiffs have failed to demonstrate that an injunction against any or all of the defendants could redress the harm alleged suffered by plaintiffs. The Court also finds that although plaintiff Newdow was not precluded from litigating the issue of whether he has standing to challenge the inclusion of the words “so help me God” as part of the presidential oath of office, he is precluded from relitigating the issue of whether he has standing to challenge the invocation and benediction that were presented at the 2009 Presidential Inauguration based upon his participation in prior litigation, both before this Court and appealed to the United States Appeals Court for the District of Columbia Circuit, and before the United States District Court for the Eastern District of California and appealed to the United States Court of Appeals for the Ninth Circuit, resulting in findings that he has no standing to challenge clergy administered prayer at the Presidential Inauguration. Moreover, the Court finds that none of the plaintiffs in this case have standing to challenge the defendants’ actions as pled in the complaint because they have identified no concrete and particularized injury. And, even if the plaintiffs could establish such an injury, they have failed to demonstrate how the harm they allege is redressable by the relief they seek, or that the Court has any legal authority to award the relief requested. Therefore, the Court finds that the plaintiffs lack standing to bring this action and that it must dismiss this case.
That’s not really surprising; while it’s still unconstitutional to bring religion into the public Inauguration ceremony, it’s hard to explain why that prayer is “harming” any atheist. That has been a sticking point on other lawsuits as well.
Newdow is a smart guy, though. He’ll find a way to bring this up again in the future, even if he’s not the public face of the lawsuit.
He’s already thinking of the next step. In an email to his supporters (reprinted on his Forum), he writes:
Okay — it’s time to celebrate. We lost, nice and quickly.
It may sound disingenuous, but I have always advocated for losing in the District Court if possible. Basically — except for findings of fact (which rarely exist in constitutional cases such as this) – it is advantageous to lose. As the loser, you are the Appellant in the next round. That allows you to frame the issues, since you go first during the briefing. The Appellant starts with a maximum 14,000 word Opening Brief. The “winners” then have a 14,000 word limit to respond with their Respondent Briefs. Then the loser gets to speak last, with a 7,000 word Reply Brief.
During the oral argument, the advantage persists. The Appellant goes first, and then can reserve time for rebuttal, so that ree goes last as well.
So pop the Champagne, and get ready for the round that really counts. Of course, we may lose again there, in which case the litigation will essentially be over (since the Supreme Court will never accept the case for certiorari if we lose in the Court of Appeals). But we have a very strong case, with that little detail called the Constitution of the United States on our side. So, in my opinion, at least, we’re in good shape.
I don’t think anything will happen from this, but I’m glad Newdow is fighting the good fight. In principle, he’s absolutely right. If atheists don’t challenge the use of religion in the public sphere — through lawsuits or through other means — the issue won’t get addressed at all.
(via Atheism Examiner)
***Update***: Newdow took his case to the United States Court of Appeals for the District of Columbia Circuit.
On Friday, the judges unfortunately dismissed his case:
A three-judge panel of the court unanimously held that the challenge to the 2009 presidential inaugural was moot because Newdow and the other plaintiffs did not appeal the District Court’s denial of a preliminary injunction and that the court did not have the power to redress the claims for future inaugural ceremonies because it did not know who the defendants would be.
Part of the reason the case was dismissed was because Newdow wanted Inauguration prayers banned in 2013 and 2017, and the judges found that to be a problem:
“By naming as defendants all persons the future President could possibly invite to administer an oath, lead a prayer, or help in the planning of these events, plaintiffs are essentially seeking a declaration of their rights accompanied by an injunction against the world,” the opinion states. “There is another name for that generally applicable relief: legislation.”
The American Humanist Association’s staff attorney Bob Ritter responded to the decision this way:
“The court today took the side of religious political conservatives who excuse governmental endorsements of Christianity as ‘simply a tolerable acknowledgment of beliefs widely held among the people of this country,’” said Ritter. “In reality, these practices are hostile to tens of millions of nontheists by disparaging their beliefs and casting them as outsiders.”
While a future lawsuit may be out of the question, it is ultimately the decision of future presidents as to whether or not to incorporate prayer into the ceremony.
One would hope some of them have the good sense to keep their faith private. But it seems likely that prayer will continue in the future.