Micheal Newdow, perhaps most famous for his efforts to have “Under God,” stricken from the Pledge of Allegiance, had also taken aim at the Inauguration ceremony of 2009, asking a federal court to enjoin CJ Roberts from appending, as President-Elect Obama had asked him to, the words, “So help me God,” to the conclusion of the inaugural oath.
Newdow also asked that the court forbid the use of invocation and benediction prayers for the (then immediate) 2009 inauguration and future inaugurations of 2013 and 2017, saying that all three included elements were violative of the of the First and Fifth Amendments, and specifically the Establishment Clause of the First Amendment.
Nope. They lost the issue at the district court, and now the DC Circuit has given its opinion.
They conclude that Newdow and his co-plaintiffs lack standing to object to furture inaugurations, and that their complaint about the 2009 ceremony is moot. Judge Kavanaugh concurs in the result, but says they have standing and would lose on the merits of the claim.
Court has reached the right answer, and I agree with Kavanaugh to the extent that even if standing were not an issue, Newdow et al would lose on the merits.
The President’s not required to add “so help me God” to the oath. He’s not even required to swear an oath if it offends his scruples. . . he can make an affirmation instead. So I don’t see the problem here. The person whose rights would be violated would be the President’s, and for the reasons above, they’re not.
I found the standing analysis unpersuasive. Kavanaugh had it right, I think, when he pointed out that the uncertainty the majority spoke of - the fact that future Presidents could change the inauguration as they wish, or cancel the ceremony altogether - introduces no greater uncertainty than in litigation against defendants involved in planning high school graduations, or government officials who “turn over” following elections.
I wish Newdow had lost on the merits. Establishment Clause cases touch on the core values of our secular republic, and I dislike the trend that seems to be constantly narrowing the scope of standing in these cases. I’m concerned in particular that the reasoning of this case may, in fact, be applied to find that litigants in future graduation or other “optional” public ceremony cases, in situations where the actual planners may not be definitively identified as yet, will lose on standing grounds.
By the way - I’m an atheist, and no fan of religion in the public sphere, but Newdow is one of those folks who makes me really, really wish he’d stop trying to help. The man’s got terrible judgment in picking these fights. Not that he’s the only one - I’m still annoyed at the Freedom from Religion Foundation for dragging Hein out to the bitter end, and giving taxpayer standing a nasty ding as a consequence.
Note to impact litigators: You’re almost never doing anyone any favors when you bring a case that’s likely to be dismissed on standing grounds, and you have an excellent chance of making bad law. Think long and hard before pulling the trigger when your standing is flimsy.
One issue addressed here was whether Newdow was collaterally estopped from proceeding on the issues, based on his previous adverse outcomes. But the court set that question aside, because collateral estoppel require mutuality of of parties, and as Newdow’s side pointed out, even if Newdow himself was issue-precluded, his co-plaintiffs were not, so the case would go forward anyway.
I just had an unpleasant thought - Newdow’s going to file a cert petition, isn’t he? Even if he has to write the damn thing himself. That’s what he does. And if the Supremes grant cert, I think they’d likely affirm the lower court’s standing decision. The conservative majority (including Kennedy on this issue) is the same as the one that decided Hein, and they don’t like far-fetched Establishment Clause cases.
Newdow’s going to make this the law of the land through sheer bloody-mindedness. Please, for the love of Ford, someone get this man a new hobby.
Yes. I don’t usually like to tell people how to use their free time, but this guy is the poster child for anti-atheist sentiment. We don’t need him on our side!
For those of us not well versed in law, am I correct in reading that the court ruled that the plaintiff cannot use the court to prohibit the actions of potential unknown persons that injure potential future persons? Makes sense.
Am I also right in reading that the plaintiff conceded that the use of God in Obama’s oath did not harm them, and barring such an oath would infringe upon the oath-taker’s rights?
If I am right about that, then what the heck does this guy want? If he concedes that it did no harm and that it would violate a person’s 1st Amendment rights to outlaw it, then what’s the goal here?
I’m all for the removal of institutionalized calls to God, but if someone chooses to do so, it’s his or her own damned business.
Oddly enough, I come close to agreeing with you. Over-ruling Flast would have been a worse outcome (in my view) than the rule the Court actually adopted - but I completely agree with Scalia that what the Court actually did simply made no sense. There isn’t any real, principled distinction between money Congress spends directly and money that Congress hands to the President to spend - it all comes from the same source, and Flast held that expenditure of taxpayer funds on an establishment of religion can constitute a redressible injury-in-fact - which produces standing.
Scalia’s scathing concurrence in Hein (and who else on the Court could write a scathing concurrence?) makes the excellent point that the majority here continued the absurd tradition of making nonsensical distinctions between direct spending and indirect spending, and the only principled thing the Court could do would be to leave Flast alone or kill it.
For that matter, Hein was even crazier insofar as the original Flast decision didn’t involve a direct Congressional allocation of funds to religious institutions any more than Hein did. The Congressional funds in Flast went to the HEW Secretary, who allocated them to private schools (mostly religious) - just as the Congressional funds in Hein were sent to the President to spend.
I say Flast should have been left alone, you say it should have been taken out back and shot - but we both agree that Hein botched the call. Isn’t it great when liberals and conservatives can reach a consensus?
If the Oath officially contained the words “so help me God”, and a President could not be inaugurated without saying those words, then I’d be upset. The Founding Fathers very wisely refrained from putting something like that in, just like they wisely left open the option of affirming rather than swearing. But not wanting the President to be allowed to say those words after he finishes the oath? That’s just crazy talk.
Captain Amazing is entirely correct. “So help me God” is a voluntary addition to the oath – I believe it was Ike who first added it. The text of the oath is at the end of Article II Section 1 of the Constitution. And as the good Captain notes, a President-elect with scruples is entitled to affirm rather than swearing the oath.
Nah. She could say she did it because she doesn’t believe a person should swear to God. I know tons of Christians who won’t, and I’m pretty sure why one was originally allowed to affirm.
Over-ruling Flast would have been a worse outcome (in my view) than the rule the Court actually adopted - but I completely agree with Scalia that what the Court actually did simply made no sense. There isn’t any real, principled distinction between money Congress spends directly and money that Congress hands to the President to spend - it all comes from the same source, and Flast held that expenditure of taxpayer funds on an establishment of religion can constitute a redressible injury-in-fact - which produces standing.