Atheist Appeals to Supreme Court Over Inauguration Prayer

The atheist who tried to remove "under God" from the Pledge of Allegiance asked the Supreme Court on Tuesday to bar the saying of a prayer at President Bush's inauguration.

In an emergency filing, Michael Newdow (search) argued that a prayer at Thursday's ceremony would violate the Constitution by forcing him to accept unwanted religious beliefs. His request has been rejected by two lower courts.

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

Newdow also asked that Chief Justice William H. Rehnquist (search), who is designated as the justice to hear emergency appeals for the D.C. Circuit, recuse himself because he is scheduled to swear in Bush and thus has a conflict of interest.

Rehnquist previously has sworn in four presidents since becoming chief justice in 1986.

"He has become a fixture in a governmental ceremony that has become infused with sectarian Christian religion and not once — as far as can be determined — has he made the slightest attempt to end that ... violation," Newdow wrote.

If Rehnquist does remove himself, the case will go to the next senior justice, John Paul Stevens (search), who has the option to refer the appeal to the full court for consideration.

Two lower courts have rejected Newdow's request to ban the prayer, suggesting he couldn't show actual injury in hearing it. In his ruling last week, U.S. District Judge John Bates also said the court did not have authority to stop the president from inviting clergy to give a religious prayer at the ceremony.

Attorneys representing Bush and his inaugural committee have argued that prayers have been widely accepted at inaugurals for more than 200 years and that Bush's decision to have a minister recite the invocation was a personal choice the court had no power to prevent.

Newdow gained widespread publicity two years ago after winning his pledge case before the San-Francisco-based 9th U.S. Circuit Court of Appeals in San Francisco, which ruled that public schools violated the separation of church and state by having students mention God.

The Supreme Court later threw out the ruling, saying Newdow could not lawfully sue because he did not have custody of his elementary school-age daughter, on whose behalf he sued. Newdow refiled the pledge suit in Sacramento federal court this month, naming eight other parents and children.