# Newdow: Swing and a miss! Court won't take "So Help Me God" from Inaugural Oath **URL:** \ **Category:** Great Debates\ **Created:** [May 11, 2010, 2:34pm UTC](https://boards.straightdope.com/t/newdow-swing-and-a-miss-court-wont-take-so-help-me-god-from-inaugural-oath/539049 "2010-05-11T14:34:53Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 11, 2010, 2:34pm UTC](https://boards.straightdope.com/t/newdow-swing-and-a-miss-court-wont-take-so-help-me-god-from-inaugural-oath/539049/1 "2010-05-11T14:34:53Z")
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.](http://pacer.cadc.uscourts.gov/common/opinions/201005/09-5126-1243573.pdf) 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. > [@](#): > > Plaintiffs do not claim President Obama’s recitation of “So help me God” at the conclusion of his oath injured them. See Br. for Appellants at 38. The President cannot be denied the prerogative of making such a religious reference, they concede, because doing so would abrogate his First Amendment rights. See Tr. of Oral Argument at 10–11. > > For sure, if it were otherwise, George Washington could not have begun the tradition by appending “So help me God” to his own oath; Lincoln could not have offered a war-weary nation “malice toward none” and “charity for all with firmness in the right as God gives us to see the right”; Kennedy could not have told us “that here on earth God’s work” must be our own; nor could President Reagan have evoked “the shining city . . . built on rocks stronger than oceans, windswept, God-blessed, and teeming with people of all kinds living in harmony and peace” in his farewell address. Instead, plaintiffs claim they are injured because “God” was referenced by the Chief Justice and the prayer leaders in the course of the 2009 ceremony. > > These references, they argue, might have misled the uninformed to think the imprimatur of the state had been placed on the invocation of the Almighty and contributed to a social stigma against them as atheists. See Tr. of Oral Argument at 8–9. We will assume, without holding, that plaintiffs’ claimed injury is an injury in fact and that it can be fairly traced to the conduct of the defendants. It is in the third element, redressability, where we find two problems with plaintiffs’ case for standing. First, plaintiffs request relief with regard to unnamed defendants over whom this court has no jurisdiction. Plaintiffs’ amended complaint targets “Other Unknown Oath Administrators,” “Other PIC Defendants,” and “Other > Unnamed Clergy” whom the President or President-elect may ask in the future to conduct and facilitate religious oaths and prayers at the 2013 and 2017 inaugurations. First Amended Complaint at 21–22, 24, Newdow, Civil Action No. 08-02248 (D.D.C. Mar. 10, 2009). It asks that we enjoin these defendants from taking part in those elements of the ceremony and to declare their possible actions in support of such religious elements unconstitutional. See id. at 55. > > It is impossible for this court to grant such relief. As a general matter, a court will not entertain a suit unless the defendant has been made a party by service of process. See FED. R. CIV. P. 4(m); Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 110 (1969). Courts do grant an exception to this rule for “John Doe” defendants, but only in situations where the otherwise unavailable identity of the defendant will eventually be made known through discovery. See Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). This case is not such a situation. No amount of discovery will uncover the identities of the unnamed defendants. Therefore, 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. There is another name for that type of generally applicable relief: legislation. 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. ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [May 11, 2010, 2:51pm UTC](https://boards.straightdope.com/t/newdow-swing-and-a-miss-court-wont-take-so-help-me-god-from-inaugural-oath/539049/2 "2010-05-11T14:51:24Z")
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. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [May 11, 2010, 3:02pm UTC](https://boards.straightdope.com/t/newdow-swing-and-a-miss-court-wont-take-so-help-me-god-from-inaugural-oath/539049/3 "2010-05-11T15:02:27Z")
I think the only question here is how many strikes does Newdow get before the Ump calls him “out”… ---
**Author:** ![Mr.Excellent](https://avatars.discourse-cdn.com/v4/letter/m/f19dbf/32.png) [@Mr.Excellent](https://boards.straightdope.com/u/Mr.Excellent)\ **Post date:** [May 11, 2010, 3:07pm UTC](https://boards.straightdope.com/t/newdow-swing-and-a-miss-court-wont-take-so-help-me-god-from-inaugural-oath/539049/4 "2010-05-11T15:07:50Z")
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. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 11, 2010, 3:13pm UTC](https://boards.straightdope.com/t/newdow-swing-and-a-miss-court-wont-take-so-help-me-god-from-inaugural-oath/539049/5 "2010-05-11T15:13:31Z")
> [@John\_Mace](#): > > I think the only question here is how many strikes does Newdow get before the Ump calls him “out”… 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. ---
**Author:** ![Mr.Excellent](https://avatars.discourse-cdn.com/v4/letter/m/f19dbf/32.png) [@Mr.Excellent](https://boards.straightdope.com/u/Mr.Excellent)\ **Post date:** [May 11, 2010, 3:15pm UTC](https://boards.straightdope.com/t/newdow-swing-and-a-miss-court-wont-take-so-help-me-god-from-inaugural-oath/539049/6 "2010-05-11T15:15:46Z")
> [@John\_Mace](#): > > I think the only question here is how many strikes does Newdow get before the Ump calls him “out”… 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. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 11, 2010, 3:17pm UTC](https://boards.straightdope.com/t/newdow-swing-and-a-miss-court-wont-take-so-help-me-god-from-inaugural-oath/539049/7 "2010-05-11T15:17:32Z")
> [@Mr.Excellent](#): > > Even if he has to write the damn thing himself. He’s appeared in front of the Supreme Court _pro se_ once already… ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [May 11, 2010, 3:20pm UTC](https://boards.straightdope.com/t/newdow-swing-and-a-miss-court-wont-take-so-help-me-god-from-inaugural-oath/539049/8 "2010-05-11T15:20:25Z")
> [@Mr.Excellent](#): > > 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! ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 11, 2010, 3:25pm UTC](https://boards.straightdope.com/t/newdow-swing-and-a-miss-court-wont-take-so-help-me-god-from-inaugural-oath/539049/9 "2010-05-11T15:25:22Z")
> [@Mr.Excellent](#): > > 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. And I think _Hein_ didn’t go far enough – it should have explicitly overruled _Flast_. ---
**Author:** ![Eonwe](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/eonwe/32/240_2.png) [@Eonwe](https://boards.straightdope.com/u/Eonwe)\ **Post date:** [May 11, 2010, 3:43pm UTC](https://boards.straightdope.com/t/newdow-swing-and-a-miss-court-wont-take-so-help-me-god-from-inaugural-oath/539049/10 "2010-05-11T15:43:12Z")
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. ---
**Author:** ![Mr.Excellent](https://avatars.discourse-cdn.com/v4/letter/m/f19dbf/32.png) [@Mr.Excellent](https://boards.straightdope.com/u/Mr.Excellent)\ **Post date:** [May 11, 2010, 3:57pm UTC](https://boards.straightdope.com/t/newdow-swing-and-a-miss-court-wont-take-so-help-me-god-from-inaugural-oath/539049/11 "2010-05-11T15:57:10Z")
> [@Bricker](#): > > And I think _Hein_ didn’t go far enough – it should have explicitly overruled _Flast_. 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? 😃 ---
**Author:** ![Spoke](https://avatars.discourse-cdn.com/v4/letter/s/a88e57/32.png) [@Spoke](https://boards.straightdope.com/u/Spoke)\ **Post date:** [May 11, 2010, 6:01pm UTC](https://boards.straightdope.com/t/newdow-swing-and-a-miss-court-wont-take-so-help-me-god-from-inaugural-oath/539049/12 "2010-05-11T18:01:26Z")
The most disturbing part of the OP is the Court’s use of “For sure” in its opinion. ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [May 11, 2010, 6:04pm UTC](https://boards.straightdope.com/t/newdow-swing-and-a-miss-court-wont-take-so-help-me-god-from-inaugural-oath/539049/13 "2010-05-11T18:04:16Z")
“So help me God” is not part of the oath anyway. The Court can’t remove what isn’t in there to begin with. ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [May 11, 2010, 8:33pm UTC](https://boards.straightdope.com/t/newdow-swing-and-a-miss-court-wont-take-so-help-me-god-from-inaugural-oath/539049/14 "2010-05-11T20:33:37Z")
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. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [May 11, 2010, 8:34pm UTC](https://boards.straightdope.com/t/newdow-swing-and-a-miss-court-wont-take-so-help-me-god-from-inaugural-oath/539049/15 "2010-05-11T20:34:55Z")
> [@spoke-](#): > > The most disturbing part of the OP is the Court’s use of “For sure” in its opinion. Totally. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [May 11, 2010, 8:42pm UTC](https://boards.straightdope.com/t/newdow-swing-and-a-miss-court-wont-take-so-help-me-god-from-inaugural-oath/539049/16 "2010-05-11T20:42:36Z")
> [@Captain\_Amazing](#): > > 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. **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](http://www.usconstitution.net/xconst_A2Sec1.html). And as the good **Captain** notes, a President-elect with scruples is entitled to affirm rather than swearing the oath. ---
**Author:** ![Lightnin](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lightnin/32/180_2.png) [@Lightnin](https://boards.straightdope.com/u/Lightnin)\ **Post date:** [May 11, 2010, 8:58pm UTC](https://boards.straightdope.com/t/newdow-swing-and-a-miss-court-wont-take-so-help-me-god-from-inaugural-oath/539049/17 "2010-05-11T20:58:40Z")
> [@Polycarp](#): > > \*\*And as the good **Captain** notes, a President-elect with scruples is entitled to affirm rather than swearing the oath. And Og help any President-elect who does so. The howling from the Persecuted Majority would be, well, _biblical_. ---
**Author:** ![BigT](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bigt/32/12044_2.png) [@BigT](https://boards.straightdope.com/u/BigT)\ **Post date:** [May 11, 2010, 9:07pm UTC](https://boards.straightdope.com/t/newdow-swing-and-a-miss-court-wont-take-so-help-me-god-from-inaugural-oath/539049/18 "2010-05-11T21:07:11Z")
> [@Lightnin](#): > > And Og help any President-elect who does so. The howling from the Persecuted Majority would be, well, _biblical_. 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. ---
**Author:** ![Spoke](https://avatars.discourse-cdn.com/v4/letter/s/a88e57/32.png) [@Spoke](https://boards.straightdope.com/u/Spoke)\ **Post date:** [May 11, 2010, 9:27pm UTC](https://boards.straightdope.com/t/newdow-swing-and-a-miss-court-wont-take-so-help-me-god-from-inaugural-oath/539049/19 "2010-05-11T21:27:04Z")
> [@BigT](#): > > 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. That’s true. Many species of Christians object to swearing, based on [Matthew 5:37 and James 5:12](http://www.topical-bible-studies.org/21-0005.htm). ---
**Author:** ![alphaboi867](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/alphaboi867/32/3898_2.png) [@alphaboi867](https://boards.straightdope.com/u/alphaboi867)\ **Post date:** [May 11, 2010, 9:29pm UTC](https://boards.straightdope.com/t/newdow-swing-and-a-miss-court-wont-take-so-help-me-god-from-inaugural-oath/539049/20 "2010-05-11T21:29:11Z")
> [@Polycarp](#): > > **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… Actually it was George Washington for first added “So help me God”. It was also his idea to swear the oath on a bible. [Next page](https://boards.straightdope.com/t/newdow-swing-and-a-miss-court-wont-take-so-help-me-god-from-inaugural-oath/539049.md?page=2)