Court Rejects Challenge to Inaugural Prayer

Published January 15, 2005

| FoxNews.com

A federal judge on Friday rejected a challenge brought by atheist Michael Newdow (search) to stop the invocation prayer at President Bush's second inauguration.

On Thursday, Newdow told U.S. District Judge John Bates that having a minister invoke God in the Jan. 20 ceremony would violate the Constitution by forcing him to accept unwanted religious beliefs.

But one day later, Bates ruled that Newdow wouldn't get far in his legal challenge and noted the absence of a "clearly established violation of the Establishment Clause."

Click here to read the Memorandum Opinion in Newdow v. Bush (FindLaw pdf).

"Moreover," the judge said in the ruling, "the balance of harms here, and particularly the public interest, does not weigh strongly in favor of the injunctive relief Newdow requests, which would require the unprecedented step of an injunction against the president."

The government had asked the U.S. District Court for the District of Columbia (search) to dismiss the current lawsuit, saying the invocation had been widely accepted for more than 200 years old.

The court on Friday said it doesn't have the power to order the president not to speak at his own inauguration and the act of ordering the president not to permit an invocation and benediction — which Newdow sought — would be one and the same.

Newdow argued he would be harmed as someone attending the inauguration by being forced to listen to sectarian and specifically, Christian, prayer. The court said that harm is simply too small to warrant its involvement in the matter. Also, the court said Newdow really doesn't have the legal standing to make this request since he sued over inauguration prayers in 2001 and lost that case in two federal courts.

Appearing on FOX News' "Hannity & Colmes" late Friday, Newdow continued to trumpet his cause. He said that reciting prayers at the inauguration violates the rights of atheists because it undermines equality.

"How can you say it's equal to say to some people that they have to listen to other people espouse religious dogma in the name of the government?" he said.

After his first inaugural legal attempt, Newdow became famous in 2002 for his unsuccessful attempt to remove the phrase "under God" from the Pledge of Allegiance.

Two ministers delivered Christian invocations at Bush's inaugural ceremony in 2001, and plans call for a minister to do the same before Bush takes the oath of office again next week.

In court this week, Newdow argued that the prayers violate the constitutional ban on the establishment of religion.

"I am going to be standing there having this imposed on me," Newdow told the court by phone on Thursday. "They will be telling me I'm an outsider at that particular moment."

Newdow also argued that taxpayer-financed inaugural ceremonies cannot be a platform for "the coercive imposition of religious dogma," adding that the president intended to "use the machinery of the state to advocate his religious beliefs."

Bates questioned both sides vigorously at Thursday's two-hour hearing, but said he doubted a court could order the president not to include a prayer when he takes the oath of office.

"Is it really in the public interest for the federal courts to step in and enjoin prayer at the president's inauguration?" Bates asked.

Bates also questioned whether the lawsuit should be thrown out because the San Francisco-based 9th U.S. Circuit Court of Appeals (search) ruled last year that Newdow did not suffer "a sufficiently concrete and specific injury" when he opposed prayers from being recited at Bush's first inauguration.

Newdow said his case is different this time because he actually has a ticket to attend the inauguration. He said being there live is different than four years ago, when he planned to watch the ceremony on television.

Justice Department lawyer Edward White scoffed at that claim, saying the issues in the two cases are the same and that Newdow still has not shown how he would be injured by hearing the prayer.

In an interview published in Wednesday's Washington Times, Bush, who converted from Episcopalianism to Methodism and prays daily, tried to dispel perceptions that he is advocating his beliefs or imposing them on anyone.

"I think people attack me because they are fearful that I will then say that you're not equally as patriotic if you're not a religious person. I've never said that. I've never acted like that," he said.

Inaugural references to God date back to George Washington's inauguration in 1789. Christian prayers within the ceremony began with Franklin Delano Roosevelt's second inauguration in 1937.

Government attorneys defending the continued use of prayer said in court papers that "there is no reason to reverse course and abandon a widely accepted, noncontroversial aspect of the inaugural ceremony."

In court Thursday, they added that Supreme Court precedent allows state legislatures and Congress to open each workday with prayer.

Newdow countered that legislative sessions are quite different from taxpayer-financed public ceremonies.

A large part of next week's inaugural ceremonies is being paid for with private donations, though the federal government is picking up the tab for construction of the viewing stands and security.

In 2002, the 9th Circuit ruled in Newdow's favor concerning the "under God" phrase in the Pledge of Allegiance. It agreed that the phrase, added to the Pledge in 1954, was an unconstitutional blending of church and state.

In June 2004, however, the U.S. Supreme Court overturned the decision on a technicality, essentially sidestepping the core issue.

It said Newdow could not lawfully sue on behalf of his elementary school-aged daughter because he did not have custody of the girl and because the girl's mother objected to the suit.

Newdow re-filed the Pledge suit in Sacramento federal court earlier this month, naming eight other plaintiffs who are custodial parents or the children themselves.

FOX News' Major Garrett and The Associated Press contributed to this report.

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