This is a partial transcript from "Hannity & Colmes," Jan. 14, 2005, that has been edited for clarity.
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SEAN HANNITY, CO-HOST: Welcome to "Hannity & Colmes." Thank you for being with us. I'm Sean Hannity. And Pat Halpin is in tonight, sitting in for Alan.
Pat, good to see you again. Thanks.
PAT HALPIN, CO-HOST: Good to be here.
HANNITY: Our top story tonight: A federal judge today rejected a lawsuit brought by atheist Michael Newdow. The suit claimed that having a minister read a prayer at next week's inauguration ceremony would violate the Constitution by forcing other people's religious beliefs upon him.
You might remember that Newdow made news a couple of years ago by challenging the Pledge of Allegiance in a California school and taking his case all the way up to the United States Supreme Court. Once again, he has come up short.
Michael Newdow now joins us from Sacramento. Here in New York is former congressman from New York, John Leboutillier.
Gentlemen, thanks for being with us.
All right. Michael, your case, you lose once again.
MICHAEL NEWDOW, BROUGHT LAWSUIT ABOUT PRAYER AT INAUGURATION: I do. Of course it's just on standing, and they haven't talked about the merits. So we still don't know whether or not this is constitutional.
HANNITY: All right. So then you're taking your other case, you've gotten a whole group of families — I read recently eight or nine — and you're going to bring the pledge case back up again, right?
HANNITY: All right. Let me ask you this. Considering the Declaration of Independence, and you — I don't want to argue if it's our founding document. I know it's our founding argument. You have your disagreement. But it refers to God, refers to natural law, endowed by our creator is the term that we use here.
Do you think it was wrong for Jefferson to write that? Do you think it was wrong to be adopted in that sense by our founders, that is the document?
NEWDOW: That was the document that was written 11 years before they came up with the Constitution. Why is it that you never talk about the Constitution when you're discussing what the Constitution means?
HANNITY: No, we talk about the Constitution, but you never listen. Because the same guy that authored the Bill of Rights — and you and I have been down this road before — James Madison, also is the same guy that brought the first chaplain into Congress and paid him. So, you know...
NEWDOW: No he didn't.
HANNITY: Yes, he did. And you even argue that he did but changed his mind.
NEWDOW: No. He said that it was not with my approbation that it occurred. That's first of all.
Second of all, can we look at the principles they talk about? This nation is founded on two basic ideas: liberty and equality. And how can you say it's equal to tell some people they have to listen to other people espouse some religious dogma from the foreign government? They're not allowed to do that. They're supposed to treat everyone equally.
HANNITY: All right. We do. John, let me — the president actually referred to him in his comments in the "Washington Times" this week when he said it's a great country, where somebody like Michael can bring his frivolous lawsuit, bring up the superfluous arguments, and then the American...
JOHN LEBOUTILLIER, FORMER CONGRESSMAN: And get on a show like this because of a frivolous lawsuit that will always lose.
HANNITY: That's a good point. What is your response to today's ruling?
LEBOUTILLIER: Well, first of all, no one is making anybody listen to anything. Mr. Newdow, in order to cause trouble and to do his whining act, went out and somehow got a ticket to this inauguration of a president he obviously did not support.
So now he says, I have the standing by going to the inaugural, and they're going to get up there and they're going to pray, and read prayers. And I, as someone attending, I don't want to have to listen to it.
The answer is very simple: No. 1, he doesn't have to go to the inaugural. No. 2, he only is going to inaugural so he can argue about it. And No. 3, where is this going to end, Sean?
If the court were to step in and say a prayer cannot be said at our inauguration of a president, what's next? What if the president says, "In my inaugural address, I'm going to recite a prayer." Is the court going to step in and say, "I'm sorry, Mr. President. You can't say that."
HANNITY: You know, John brings up a good point Mr. Newdow. Inasmuch as I don't know what your fear here is, but we have this, by my understanding, every inauguration that has taken place since the beginning of this country.
NEWDOW: That's incorrect.
HANNITY: And you want to take that tradition, because you have a value system that's different. Where does this end for Michael Newdow?
NEWDOW: We had a tradition where blacks and whites had separate bathrooms and where there was prejudice all over the place. We had a tradition where women were treated as second-class citizens. Where it gets taken to the extreme is where we stop doing that.
HANNITY: See, you didn't explain. What's the...
NEWDOW: We have a theocracy. Why did the founders make an establishment clause?
HANNITY: No, we don't. We don't have a theocracy, because you don't know what one is.
NEWDOW: It says, "in God we trust" on coins and currency. "In God we trust" is our motto. We have our Pledge of Allegiance, "under God." The Supreme Court starts off their session, "God save the court."
HANNITY: You're free to be the atheist that you are. You're free to be ignorant. You're free to be agnostic. You're free to be who you are.
NEWDOW: You're confusing two clauses, because there's two clauses. There's an establishment clause that says government cannot take positions on religion.
HANNITY: And the free exercise.
NEWDOW: And the free exercise clause.
HANNITY: Which is what the president's doing.
NEWDOW: Which says that individuals can do anything they want.
HANNITY: And so...
NEWDOW: But the government can't. The president is an individual sometimes. If he wants to go before his inauguration and go to his church, he has every right to do that. No one's stopping him. If he wants to put his hand on the Bible, he can do that.
But he can't bring in chaplains to come out and say that Jesus Christ is Lord in a nation that says we have an establishment clause that forbids government from doing that. He's a third of the government.
HALPIN: Doctor — Dr. Newdow, hold on for a second. I want to get Congressman Leboutillier.
Look, this is a very smart man. He's a medical doctor. He's a lawyer. He makes an interesting argument. But I want to come back to the thing about prayer.
Most of the prayers at inaugurations — Congressman Leboutillier, you've been to a lot of them — have been nonsectarian. And at the last George Bush inauguration, he had a Reverend Caldwell get up there. At the end of his prayer, he got up, "In the name of Jesus," and the words, "let all who agree say amen."
Do you think perhaps Mr. Bush has moved from that nonsectarian tradition of prayer to one where he's now advocating — I happen to be a Christian, so it doesn't bother me — prayers that might offend people who don't believe that Jesus Christ is their Lord and savior?
LEBOUTILLIER: Well, here's the thing, though, Pat. He won a bigger re-election than he won his first election. And everybody knew when they voted for George Bush the second time that he is probably the most fervent born-again Christian we've had, including Jimmy Carter. So there's really no mystery to this.
So I don't think it's — if it offends people, it offended in the election. They voted against George Bush. I would like to think that the president next Thursday, at the inaugural, will have prayers said that will not offend anybody.
HALPIN: Dr. Newdow, I want to come back to a point Sean was making.
You know, when the Declaration of Independence — I want to put those words up there that Sean was referring to — when the Declaration of Independence was written and adopted, when they talked about rights coming from the creator, didn't — and that all of us as human beings had them, wasn't that really a statement that those rights, for life, liberty, and the pursuit of happiness, didn't just, weren't just possessed by the monarch, but these were rights that all of us as people had, whether we had monarchs or not? Don't you understand that was the basis of our democracy?
NEWDOW: The basis of our democracy is equality and liberty. And they continually said that everybody had equal rights in terms of religion. Don't people need these rights?
HALPIN: But up until that point, individuals did not have the right to life, liberty, and the pursuit of happiness.
NEWDOW: That's right.
HALPIN: The fact that they said that these were rights given to us by the creator means that...
NEWDOW: Where do you see that in the Constitution? Why did they leave it out of the Constitution?
HALPIN: Well, let's look at — let's look at those words right up on the screen here.
NEWDOW: That's not the Constitution. That's the Declaration of Independence.
HALPIN: "We hold these truths to be self-evident, that all men..."
NEWDOW: It was written 11 years before the Constitution was written.
HALPIN: "... are created equal, and that they're endowed by their creator." That became the basis.
NEWDOW: Why don't go back to 1732. Why don't you go back to 1732 where it said in the Constitution of Georgia that papists couldn't hold public office? We'll keep all the Catholics out. As a matter of fact, there were four states that had that.
What are you going backward for? Why don't you look at the document that created our laws? That was the Constitution. They didn't put God in there.
LEBOUTILLIER: All right, here's the thing. I think — I don't think Mr. Newdow is a bad guy. I think he has a good spirit about him.
He's also an example of someone who's got too much education and too little common sense and doesn't realize that what made this country, from the beginning — all the founders thought this — was we are different. We get our power, we the people, from the creator.
HANNITY: We've got to pick this up when we come back. We'll get Newdow's reaction to the president's statement that he couldn't be — doesn't know how he could be president without a relationship with the Lord.
HALPIN: There you have it: only six days left before President Bush is sworn in for a second term. But the big question is, will there be prayer at the inauguration?
We continue now with Michael Newdow and John Leboutillier.
Congressman Leboutillier, I want to read a quote to you from one of your conservative judges, a person from — from your side of the spectrum, Judge — Judge Scalia, who said that government, courts have ruled out of order government-sponsored prayer, even when there's no collusion present.
I think one of the arguments that was being made here was that — was that if you're in the audience, if you're listening to something that you don't want to hear, that's a form of collusion.
How is it that what courts are ruled in other cases, where you have public assembly, doesn't apply to the inauguration?
LEBOUTILLIER: Well, it could be. I don't know. It could be, because it's under the ceremonial exception to the law. At ceremonies like this in Congress and elsewhere, they're allowed to say prayer. We open Congress every day with a prayer.
And also, you know, let's say George Bush wasn't president, and he's a citizen, and he's about to be sworn in. And he asks that at five minutes of noon, five minutes before the swearing in, his hometown preacher gives a prayer. Now, the government has nothing to do with that. This is his own ceremony where he's being sworn in.
So I really think Mr. Newdow has created a tempest in a teapot. There's no problem here. No one is being hurt. And a majority of people are very happy to have God present when our president is sworn in.
HALPIN: Dr. Newdow, how about what Judge Scalia...
NEWDOW: Can I answer that? Because...
HALPIN: How is this — the inauguration any different than, let's say, a football game or a — or a school assembly, where in the past they used to have prayers but the courts have said, even conservative jurists have said that that's not appropriate?
NEWDOW: Right. And the Supreme Court said that religious liberty protected by the Constitution is abridged when the state affirmatively sponsors the particular religious practice of prayer. It seems to me they're affirmatively sponsoring it.
And in response to the congressman's statement there, well, what's the big deal. Supposedly, he was five minutes before.
So could he say at five minutes before, if he was a racist, we're going to have separate bathrooms here at this inauguration? Could he do that? I don't think so.
This is the exact same thing. It says no law respecting an establishment of religion. And the argument in return is, oh, yes, no law except believe in God or except that we're founded on God.
LEBOUTILLIER: I think to — OK. I think to equate racial separatism, which is an awful thing, which we all now condemn, to equate that with...
NEWDOW: But we can't 20 years ago.
LEBOUTILLIER: Well, OK, the country has changed. But we have...
NEWDOW: That's right. And now I'm trying to get it to change to recognize that atheists don't deserve to be treated like blacks were treated 20 years ago.
LEBOUTILLIER: But that's just ridiculous.
LEBOUTILLIER: To have someone utter a prayer is not the same as saying to black person, "You can't come in this room."
NEWDOW: Why? Why can't you say, "You can go urinate in the other room"?
LEBOUTILLIER: No one is preventing you from doing anything.
NEWDOW: No one is preventing you from urinating. Just do it in the other room.
LEBOUTILLIER: You're trying to prevent us...
HANNITY: For 200 years, prayers have been said at inaugurations.
NEWDOW: Blacks were kept out of white bathrooms.
HANNITY: It's a silly argument, Michael. I mean...
NEWDOW: Why is that silly? You're turning people into second-class citizens.
HANNITY: You're trying — you're trying to force your values down everybody else's throat.
NEWDOW: Not at all. I'm saying...
HANNITY: Indeed you are.
NEWDOW: I'm saying let's recognize — what am I saying? I'm saying government — I'm saying government take no position...
HANNITY: No, it's not. Free exercise thereof.
NEWDOW: Don't say atheists are better, don't say people who believe in God are better.
HANNITY: There's going to be prayer, like there has been in the last 200 years at an inauguration. It's going to happen this time.
NEWDOW: First of all, it's only the last 68 years. It's only the last 68 years. It probably will, because our government hasn't upheld the Constitution.
HANNITY: No, because you're probably the only one in America that has this perverted view of what the Constitution means.
NEWDOW: Tell me how you see it as being equal. How do you see it as being equal, as saying we're going to take this one religious view that there is God.
HANNITY: Let me ask you this. You're talking about the Constitution.
NEWDOW: Let me answer this question. This is very simple. Tell me how you see that as being consistent with equality. Saying we're going to say this religious view and stick it here in the midst — this man is taking his oath of office to preserve, protect, and defend the Constitution.
HANNITY: That's right. That's right.
NEWDOW: And as he's doing it, he's violating the first 10 words of the Bill of Rights.
HANNITY: You keep going back to the Constitution. Let's give you a little constitutional history lesson here. To be at that convention in 1787, there were state representatives from states like Maryland and others. To be state representatives, they had to profess a belief in God the father and Jesus Christ his son.
NEWDOW: That's right.
HANNITY: They went to...
NEWDOW: And Thomas Jefferson cleaned that clause — knocked it off in Delaware.
HANNITY: Let me — Michael — Michael, let me finish.
HANNITY: They had to take that oath to enable them to go to the convention. Are you then saying, based on that, that it's not a valid document, because that's what enabled them to be there?
NEWDOW: No, not at all. I'm saying that when they got to the constitutional convention, they said, "We're not going to have that." They were in Philadelphia, in Pennsylvania...
HANNITY: They all stopped for prayer and fasting, as Benjamin Franklin...
NEWDOW: They didn't do that. You're wrong again, Mr. Hannity.
LEBOUTILLIER: Sean, you know what kills me? We have a guy...
NEWDOW: The only time was Benjamin Franklin said — suggested it, and he lost that. It didn't pass.
LEBOUTILLIER: We have a guy who is trained doctor, trained lawyer. We've got 200,000 people from the tsunami dead and all the suffering in the world. Wouldn't it be better for that brain to be working on helping those people, than this?
NEWDOW: And we also have people in Iraq.
HANNITY: Let me — last question...
NEWDOW: And we have the Sunnis and the Shiites and the Kurds fighting. Why is that? How many people have died in how many wars as a result of religious conflict?
HANNITY: Does it upset you, Michael, that the president says he doesn't see how one could be president without a relationship with the Lord? What does that do?
NEWDOW: And would it bother a black person if he said I don't see how one could be a president without being white?
LEBOUTILLIER: There we go again. There we go.
NEWDOW: That's identical. That's the problem.
LEBOUTILLIER: This is a surprise for a guy with all your educational degrees, you're acting like a sophomore in high school.
NEWDOW: Tell me how it's different. Tell me how it's different.
HALPIN: Congressman Leboutillier, Doctor Newdow, thank you both for being here.
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