Michael Newdow’s Inauguration Lawsuit Appeal Dismissed May 8, 2010

Michael Newdow’s Inauguration Lawsuit Appeal Dismissed

This is a repost from March 14th, 2009 with slight edits and an update on the case.

A couple months ago, atheist Michael Newdow filed a lawsuit against prayer being used in Barack Obama‘s Inauguration ceremony.

Specifically, Newdow and the other plaintiffs were against:

  • The addition of “so help me God” to the presidential oath of office (said by Chief Justice John Roberts) which violated the Establishment and Free Exercise Clauses of the First Amendment.
  • The government-sponsored use of any clergy at all during the inauguration which violated the Establishment and Free Exercise Clauses of the First Amendment

The lawsuit was temporarily halted by United States District Judge Reggie Walton and the Inauguration went ahead with the prayers as planned.

Now, that lawsuit has come to a more permanent end.

On Thursday, Judge Walton issued an order dismissing the entire case (PDF). It seems to also put a halt to further action by Newdow:

Upon review of the parties’ written submissions, the Court finds that the plaintiffs have failed to demonstrate that an injunction against any or all of the defendants could redress the harm alleged suffered by plaintiffs. The Court also finds that although plaintiff Newdow was not precluded from litigating the issue of whether he has standing to challenge the inclusion of the words “so help me God” as part of the presidential oath of office, he is precluded from relitigating the issue of whether he has standing to challenge the invocation and benediction that were presented at the 2009 Presidential Inauguration based upon his participation in prior litigation, both before this Court and appealed to the United States Appeals Court for the District of Columbia Circuit, and before the United States District Court for the Eastern District of California and appealed to the United States Court of Appeals for the Ninth Circuit, resulting in findings that he has no standing to challenge clergy administered prayer at the Presidential Inauguration. Moreover, the Court finds that none of the plaintiffs in this case have standing to challenge the defendants’ actions as pled in the complaint because they have identified no concrete and particularized injury. And, even if the plaintiffs could establish such an injury, they have failed to demonstrate how the harm they allege is redressable by the relief they seek, or that the Court has any legal authority to award the relief requested. Therefore, the Court finds that the plaintiffs lack standing to bring this action and that it must dismiss this case.

That’s not really surprising; while it’s still unconstitutional to bring religion into the public Inauguration ceremony, it’s hard to explain why that prayer is “harming” any atheist. That has been a sticking point on other lawsuits as well.

Newdow is a smart guy, though. He’ll find a way to bring this up again in the future, even if he’s not the public face of the lawsuit.

He’s already thinking of the next step. In an email to his supporters (reprinted on his Forum), he writes:

Okay — it’s time to celebrate. We lost, nice and quickly.

It may sound disingenuous, but I have always advocated for losing in the District Court if possible. Basically — except for findings of fact (which rarely exist in constitutional cases such as this) – it is advantageous to lose. As the loser, you are the Appellant in the next round. That allows you to frame the issues, since you go first during the briefing. The Appellant starts with a maximum 14,000 word Opening Brief. The “winners” then have a 14,000 word limit to respond with their Respondent Briefs. Then the loser gets to speak last, with a 7,000 word Reply Brief.

During the oral argument, the advantage persists. The Appellant goes first, and then can reserve time for rebuttal, so that ree goes last as well.

So pop the Champagne, and get ready for the round that really counts. Of course, we may lose again there, in which case the litigation will essentially be over (since the Supreme Court will never accept the case for certiorari if we lose in the Court of Appeals). But we have a very strong case, with that little detail called the Constitution of the United States on our side. So, in my opinion, at least, we’re in good shape.

I don’t think anything will happen from this, but I’m glad Newdow is fighting the good fight. In principle, he’s absolutely right. If atheists don’t challenge the use of religion in the public sphere — through lawsuits or through other means — the issue won’t get addressed at all.

(via Atheism Examiner)

***Update***: Newdow took his case to the United States Court of Appeals for the District of Columbia Circuit.

On Friday, the judges unfortunately dismissed his case:

A three-judge panel of the court unanimously held that the challenge to the 2009 presidential inaugural was moot because Newdow and the other plaintiffs did not appeal the District Court’s denial of a preliminary injunction and that the court did not have the power to redress the claims for future inaugural ceremonies because it did not know who the defendants would be.

Part of the reason the case was dismissed was because Newdow wanted Inauguration prayers banned in 2013 and 2017, and the judges found that to be a problem:

“By naming as defendants all persons the future President could possibly invite to administer an oath, lead a prayer, or help in the planning of these events, plaintiffs are essentially seeking a declaration of their rights accompanied by an injunction against the world,” the opinion states. “There is another name for that generally applicable relief: legislation.”

The American Humanist Association’s staff attorney Bob Ritter responded to the decision this way:

“The court today took the side of religious political conservatives who excuse governmental endorsements of Christianity as ‘simply a tolerable acknowledgment of beliefs widely held among the people of this country,'” said Ritter. “In reality, these practices are hostile to tens of millions of nontheists by disparaging their beliefs and casting them as outsiders.”

While a future lawsuit may be out of the question, it is ultimately the decision of future presidents as to whether or not to incorporate prayer into the ceremony.

One would hope some of them have the good sense to keep their faith private. But it seems likely that prayer will continue in the future.

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  • TychaBrahe

    Why is a President’s prayer a matter of public debate? Obama claims to be a Christian. Therefore one can presume he believes in God. Christians believe in swearing in the name of God. If it makes him feel better to take a oath in God’s name, he should have that right. Atheists should no more seek to prevent this then they should try to remove symbols of religious beliefs from veterans’ graves in national cemeteries (something the ACLU has no intention of doing, but is frequently accused of doing in inflammatory and defamatory e-mails).

    I don’t believe in public invocations at government sponsored events, but I don’t understand why anyone would sue to interfere with someone else’s expression of faith.

  • rbray18

    tell ya what tycha soon as we get a Jewish or Muslim or Hindu or Buddhist president then we can talk bout respecting everyones right to public shows of faith when it comes to secular offices.

  • Trans Sami

    The judge is totally right, the president using federal funds and federal time to talk about how great Christianity is in no way harms or even affects athiests. Just like how I’m sure if the president had spent a day talking about how people who believe in deities are morons and how everyone should be an athiest while paying Dawkins and PZ Meyers with federal funds to come onstage and agree with him this same judge wouldn’t have demanded it be immediately stopped as a blatant endorsement of athiesm over other religions.

  • Miko

    @Tycha: Why is the question of gay marriage a matter of public debate? Why is immigration a public debate? Why is what drugs a person can use a public debate? Once you (incorrectly) assert that a government has authority over the lives of everyone, it’s unreasonable to expect the people to give the government a free pass on any issue, no matter how trivial.

    Let’s say that the religious reference in the oath is a violation of the Constitution (I’m not sure whether it is or not). In that case, the government is systematically violating the one protection we have against their tyranny (except for the much more effective and highly recommended strategy of direct action) and our only recourse (again, other than direct action) is to beg another part of the government to suggest to the first part of the government that they stop it. Although one would almost suspect that the system was set up specifically to make the people powerless (and to the extent that Hamilton got his hands on it, that suspicion is correct), we ought to be as vigilant in possible in pursuing that one lousy method that the government has provided us, on every issue, no matter how trivial. Even if we lose every time, at least we’ll help draw attention to how corrupt our government really is (and thus hopefully persuade people to explore methods of change outside of the official channels).

  • Miko


    The judge is totally right, the president using federal funds and federal time to talk about how great Christianity is in no way harms or even affects athiests.

    Always great to hear from those who can’t spell atheist (hint: it’s spelled correctly in the title bar of your browser); it makes your arguments look much more well-reasoned, which is really saying something because your logic was already solid gold as written.

    In all seriousness though, this is absolutely correct: the harm isn’t specifically against atheists, as wasting federal funds this way harms all taxpayers of all religions and even all non-taxpayers who are affected by the government actions. It’s just that the court system is designed so that the people aren’t allowed to challenge any program on these grounds, no matter how blatantly illegal it is. As I mentioned in my previous comment, the system is set up to guarantee that the people always lose and the government always wins. When the actions of the government are clearly wrong, this is easiest to do by introducing a lot of stupid standing issues (e.g., “we can’t decide whether a law preventing you from having an abortion is Constitutional because you already had a baby while we were deliberating so the issue is moot now,” “a large group can’t sue because no individual member can show especial harm,” “a small group can’t sue because the same is true of a larger group”). We make lawsuits twisted in these ridiculous ways not because they’re the best ways of presenting our arguments, but because no other official channel is open.

  • Trans Sami

    Do you ever get tired of being a condescending prick Miko?

  • I hate the use of religion at the inauguration as much anyone else, but the judges made the correct legal ruling. It’s not as simple as who’s right and who’s wrong. Standing and issues of justiciability can’t be ignored, especially at the lower levels, unless the judge likes being constantly overruled.

  • Not much point in a constitution if those in power won’t obey it and judges won’t rule on it. Makes it pretty much a worthless bit of paper.

  • muggle

    Oh, c’mon, the President wants to pray in private before hand, that’s his right but it’s not his right to use the platform of the inaugration to endorse prayer. And, no, it wouldn’t be okay if he used it to condemn religion.

    Seriously, what’s so difficult to grasp about taking a neutral stance?

  • Captain Werewolf

    @Secular Planet: Taxpayers have standing under Flast v.Cohen for challenges under the Establishment Clause. Hein v. FFRF definitely ate away at this privilege (on the basis that executive branch use of general congressional appropriations did not count as a congressional action), but Flast was not overruled–contrary to the wishes expressed in Scalia’s concurrence.

    I’m not sure where the money for the inauguration comes from, but if it’s part of a specific appropriation that Congress approves, any taxpayer should have standing. And I don’t buy the argument about this being an injunction against the “entire world” just because he’s seeking an injunction for 2013 and 2017. That’s like saying you can’t sue the director of the FDA if you don’t know who his successor will be.

  • ihedenius


    Unless I’m confusing another case Newdow did not sue Obama. He sued justice Roberts (part of the lawsuit, the only part I’ll comment on here) for volunteering “so help me god”. The presidential oath is spelled out explicitly in the constitution and “so help me god” is not part of it. Obama sent a letter to Roberts officially asking for Roberts to add “so help me god” as a result of this lawsuit thereby making it his (Obamas) private wish to have the frase included. I believe Newdow is fine with the president privately expressing faith at his own initiative. The supreme court justice volunteering this unconstitutional frase as they’ve done since the 1930’s (?) is as unconstitutional as it gets.

    Unless they are stupid (or possibly eyes glazed over with Jebus) everybody involved knows Newdow is right.

  • I’ve never understood why you have an inauguration at all. Someone wins the election, then they get on with the job. Isn’t the whole speech and prayer thing a bit over the top? If there is a god of some kind I think he or she would find the entire affair a trifle embarrassing.

    In England (when we find out who won the election this week) the Prime Minister will see the Queen privately, have a brief photo-op at Number 10 and then get down to work.

    I’m pretty sure the Queen is the closest thing to God that we have in England (an 84 year old eccentric grand mother with a lot of money) and she just wants a brief chat over some tea and crumpets.

  • Kela

    The separation of church and state, while protecting the non-religious, actually does more to protect the “sacred” status of religion. Every time religious practices are brought out into the public square, whether it is prayer in school or at government functions or the use of government funds for religious charities/causes it waters down the impact of religion. In the short run they may have a victory, mostly because it raises our hackles, but in the long term it only weakens their cause to demand/require support of the government.

  • RedSonja

    I’m working for the Census at the moment, and when we were sworn in “so help me god” was included in the oath we were to recite. I skipped it, but was mightily annoyed that it was even in there. So YES, “so help me god” in these oaths really does affect even us little commoners.

  • Neon Genesis

    The prayer ceremonies at Obanma’s inauguration didn’t cause anyone harm? Nonsense! What about the harm Rick Warren praying at the event caused to the LGBT community? Oh that’s right; no one cares about harming the LGBT community apparently: http://www.cnn.com/2008/POLITICS/12/17/obama.warren/ “Prominent liberal groups and gay rights proponents criticized President-elect Barack Obama Wednesday for choosing evangelical pastor Rick Warren to deliver the invocation at the presidential inauguration next month.

    Warren, one of the most influential religious leaders in the nation, has championed issues such as a reduction of global poverty, human rights abuses and the AIDS epidemic.

    But the founder of the Saddleback Church in Lake Forest, California, has also adhered to socially conservative stances — including his opposition to gay marriage and abortion rights that puts him at odds with many in the Democratic Party, especially the party’s most liberal wing.

    “[It’s] shrewd politics, but if anyone is under any illusion that Obama is interested in advancing gay equality, they should probably sober up now,” Andrew Sullivan wrote on the Atlantic Web site Wednesday.

    People for the American Way President Kathryn Kolbert told CNN she is “deeply disappointed” with the choice of Warren and said the powerful platform at the inauguration should instead have been given to someone who has “consistent mainstream American values.” iReport.com: What do you think of the pick?

    “There is no substantive difference between Rick Warren and James Dobson,” Kolbert said. “The only difference is tone. His tone is moderate, but his ideas are radical.”

    Joe Solmonese, president of the Human Rights campaign, said Wednesday he feels a “deep level of disrespect” over the choice of Warren and is calling on Obama to reconsider the move.

    “By inviting Rick Warren to your inauguration, you have tarnished the view that gay, lesbian, bisexual and transgender Americans have a place at your table,” Solmonese said in an open letter to Obama that was released by his organization.

    In his recent interview with Beliefnet, Warren also sparked outrage among supporters of abortion rights for criticizing those who have said abortion would be “safe and rare.”

    “Don’t tell me it should be rare,” he said in the interview. “That’s like saying on the Holocaust, ‘Well, maybe we could save 20 percent of the Jewish people in Poland and Germany and get them out and we should be satisfied with that — I’m not satisfied with that. I want the Holocaust ended.”

    But Warren, whose church attracts more than 20,000 people a week, has widely been recognized for his attempts to expand the evangelical movement beyond socially conservative issues.

    In the 2008 election, Warren hosted Obama and Sen. John McCain, the Republican presidential nominee, at a candidate forum held in his church.

    His book “The Purpose Driven Life” has sold more than 20 million copies since it was first published five years ago, and Time magazine named him one of the 25 most influential evangelicals in 2005.

    “Many believe that Warren … is the successor to the [Rev. Billy Graham] for the role of America’s minister,” Time wrote in 2005. ”

    Someone explain to me the logic that Rick Warren praying at the event didn’t harm anyone at all. This whole mess could have easily been avoided if they didn’t have prayer ceremonies at the event to begin with.

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