He Can't Believe It
Now Michael Newdow is offended by prayer at the presidential inauguration.
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HOUSES OF WORSHIP
BY VINCENT PHILLIP MUNOZ
Friday, January 14, 2005 12:01 a.m.
Next Thursday, George W. Bush's inauguration will include a religious invocation . . .unless Michael Newdow has his way. Mr. Newdow, the atheist lawyer who last year failed to persuade the Supreme Court to eliminate the words "under God" from the Pledge of Allegiance, has filed a lawsuit seeking to remove all prayer and "Christian religious acts" from the Jan. 20 inauguration.One might be tempted to dismiss Mr. Newdow's case as nothing more than a media-savvy attack on religion. In the crazy world of modern church-state jurisprudence, however, his legal argument is not far-fetched. What ought to grab the attention of those who would prefer to allow religion in the public square is that earlier court decisions provide the grounds for Mr. Newdow to make a plausible legal case.
He claims that an inauguration that includes prayers by religious ministers would turn nonbelievers "into second-class citizens and create division on the basis of religion." His argument adopts the Establishment Clause standards articulated by Justices Sandra Day O'Connor and John Paul Stevens.
Justice O'Connor has opined that the First Amendment prohibits governmental acts that "endorse" religion or cause nonbelievers to feel like "outsiders" in the political community. In 2002, Justice Stevens voted against Cleveland's school voucher program because it would "increase the risk of religious strife" between people who disagree on religious matters. If this year's inauguration follows the form of Mr. Bush's last one and includes invocations delivered by religious ministers, it would not be unreasonable to conclude that it fails Justice O'Connor's and Justice Stevens's Establishment Clause tests.
Church-state jurisprudence today is infected by modern-day squeamishness about public expressions of piety. This is a departure from, not the fulfillment of, America's earliest constitutional traditions. The public recognition of God, in fact, was part of those traditions from the beginning.
Knowing that he would establish precedent, George Washington deliberately took the very first presidential oath of office with his hand on the Bible. Washington also intentionally modified the oath itself, adding the phrase "so help me God" to the text prescribed in the Constitution. Washington then proceeded to begin the first inaugural address with a prayer. "It would be peculiarly improper to omit in this first official act," Washington stated, "my fervent supplications to that Almighty Being who rules over the universe."
Washington's actions to solemnize his inauguration reflect the common sense of the Founders. They understood that, for those who possess it, religious faith can help to nourish the qualities of citizenship on which democratic government depends. The Founders acted, accordingly, in a manner that embraced religious belief while in no way enforcing it.
The modern Supreme Court departed from the Founders' approach more than 50 years ago in Everson v. Board of Education, when it constructed the notorious "wall of separation" interpretation of the Establishment Clause. Not only has the contemporary court failed to overturn Everson, but Justices O'Connor and Stevens have attempted to fortify it under the guise of prohibiting the governmental "endorsement" of religion and banning religiously divisive public policies.
The U.S. District Court for the District of Columbia scheduled a hearing yesterday on Mr. Newdow's case. Barring the unthinkable, the case will be dismissed or delayed and President Bush will be allowed to conduct his inaugural as he sees fit.
But until the Supreme Court reverses course and returns to a religion jurisprudence that respects our founding heritage, the public presence of religion will face continual legal challenges like Mr. Newdow's. To profess religious beliefs in the public square will require defeating lawsuit after lawsuit, which would seem to make religious citizens, not atheists, second-class citizens.
Mr. Muñoz, an assistant professor of political science at North Carolina State University, is completing a book on religious liberty and the American founding.
Copyright © 2005 Dow Jones & Company, Inc. All Rights Reserved.
Court Rejects Challenge to Inaugural Prayer
Saturday, January 15, 2005
WASHINGTON — 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.