Judge Says No to Atheists’ Inaugural Prayer Challenge

The Michael Newdow-led (and several-atheists-followed) fight to stop prayer from being used during Barack Obama‘s Inauguration ceremony came to a temporary halt today when a judge rejected the challenge:

U.S. District Judge Reggie B. Walton refused to grant an injunction preventing such references in a lawsuit brought by a group of atheists. The atheists had argued that the use of prayer and the words “so help me God” by Chief Justice John G. Roberts Jr. while administering the oath of office violated their Constitutional rights. Walton ruled that he did not have the power to prevent Obama from making such references or inviting ministers on stage to offer prayers.

This isn’t the end of the line for the lawsuit, but it probably means a “winning scenario” won’t have any impact on next week’s ceremony.

Walton said he had difficulty understanding how Newdow and other plaintiffs could say they were harmed by Supreme Court Chief Justice John Roberts administering the oath with the words “so help me God” while supporting Obama’s personal free exercise to say the same phrase.

“I can tell the chief justice what he can do?” Walton asked Newdow.

“The chief justice is not above the law,” responded Newdow, who represented himself and the other plaintiffs.

Newdow will appeal the ruling but adds, “I think it’s going to be futile.”

I’m obviously not a lawyer, but much like Newdow’s attempts to get “Under God” out of the Pledge, I’m not hearing the judges address the underlying issues. They find something else to argue about — standing in the case or whether atheists are truly “harmed” or whether the ruling can actually be enforced — instead of addressing whether religion should be allowed in these public events.

If they judge the cases based on those actual arguments, there’s no reason the atheists should lose.

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Kyle

These rulings make me wonder how in the world anyone won the Dover case. It’s the same underlying tenant.

Public servants/entities cannot endorse – directly or indirectly – any religion over another. I don’t see any other religions being granted a time to preside nor do I hear Obama saying all of the incantations.
Vincent

I was in attendance, and I am a lawyer (I filed an amici brief in the case).
I think the judge’s ruling was shameful.
He basically said he can’t enjoin the president. Why not? Nixon was, Clinton was…. The president is not above the law.
I personally disagree with much of the suit but I do oppose Roberts altering the oath, even if he does so at the request of the president.

The “where’s the harm” argument is bad too. One day it will be seen, and he did basically say “if there was empirical evidence I could find harm” but frankly, studies have not been done.

As a side note, the question came up chatting outside and seems by the constitution, Obama will be president at noon on Tuesday, whether or not he says the oath. He just cannot execute the duties of the office until he says those words.
Miko

True, but if they want to judge on the legal merits, they should probably chuck out the rest of the Pledge along with “under God.”

See http://www.positiveliberty.com/2009/01/atheism-and-the-pledge.html
Richard Wade

Judge Walton is most likely a believer, he was most likely raised by believers, he was most likely educated by believers, and he was certainly placed on the bench in DC by a believer, George W. Wipes-His-Ass-With-The-First-Amendment Bush. He answers to believers personally, socially, professionally and politically. If he is derelict in his judicial duty by essentially shrugging his shoulders with such rationalizations as “Oh what’s the harm in a little prayer?” and “Hey, what can I do about it?” then his career is still upwardly mobile, maybe even toward the Supreme Court. He will be 60 next month.

On the other hand, Judge John E. Jones, who is 53, whose admirable integrity and judicial ethics brought forth a just, broad and sensible decision in Kitzmiller v. Dover Area School District, who was also appointed by George W. W-H-A-W-T-F-A Bush, will probably not be promoted to any higher level in the Federal Court system.
Basic Atheist

Tampering with the oath is one thing, which I am against, but if Obama wants to include his own words afterwards, then it’s fine with me. Whatever makes him feel official.
PrimeNumbers

And there’s no harm for blacks to sit at the back of the bus. And there’s no harm for Jews to wear a little badge, or gays for that matter.
SASnSA

The harm as I see it is that Christians see things like this and the “In God we trust” on our money and “under God” in the pledge of allegiance as proof that this is a Christian nation, and as a reason to further ignore atheist arguments. Correct me if I’m wrong, but wasn’t that the reason for the establishment clause?
Woody Tanaka

The root of this is the case law on so-called ceremonial deism (which seems to me to say that it doesn’t count as “religion” if it excludes only the non-religious.) Under that case law, this is the same as the money cases. Until that law is rejected, we’ll run into this same result over and over again. (I think the fact that the 9th didn’t abide by it in the Newdow pledge case was great, but given the facts — kids in school, mandatory recitation, a statute which was specifically passed for religious purposes — it was clearly an outlier.)

But putting that case law aside, I think that the correct distinction has to be between Roberts saying “so help me god” and Obama saying it. Obama is not acting in an official capacity when he says the words, he is acting as an individual. So if he wants to add “so help me god”, that is his right.

But Roberts is acting as a government official. I would draw the line at him saying “so help me god” because of that office. (The fact that Obama might ask Roberts to say it is irrelevant, in my mind, because he can no more abide by that wish constitutionally than he could choose on his own volition to include it.)
Schmeer

I think the harm in including phrases such as “So help me God” or “In God we trust” is also evident in the recent survey that found 53% of Americans unwilling to vote for an atheist presidential candidate. If a majority of the population sees “So help me God” as an official requirement for the office then of course they will see an atheist as an unfit candidate.
Luther Weeks

No harm apparent, unless we give some other examples:

So help me Aila.

So help me Santa.

So help me Joseph Smith.
Siamang

Woody argues the case well.

“it doesn’t count as “religion” if it excludes only the non-religious.”

Great, clear phrasing of the issue.
Curtis

The constitution clearly specifies the oath the president must take:

“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”

Adding “So help me god” or “as much as I feel like” clearly change the meaning. Any changes to the oath would be unconstitutional.