Today in Newdow v. Roberts, (DC Cir., May 7, 2010), the Court of Appeals for the D.C. Circuit dismissed an Establishment Clause challenge to prayer and the use of “so help me God” in the oath at Presidential inauguration ceremonies. An opinion by Judge Brown, joined by Judge Ginsburg, held that the suit should be dismissed on mootness and standing grounds, while a concurring opinion by Judge Kavanaugh would have dismissed on the merits.
Judge Brown wrote that the challenge to religious expressions at President Obama’s 2009 inauguration is moot. Plaintiffs failed to appeal the district court’s denial of a preliminary injunction. (See prior posting.) Had they done so and had they won on appeal, that would have avoided mootness. As to their challenge in connection with the 2013 and 2017 inaugurations, plaintiffs are seeking relief against unknown parties over whom the court lacks jurisdiction. There is no assurance that those involved in planning the 2009 Inauguration will be involved in the future. And there is no way for plaintiffs to sue all possible future Presidents-elect. Therefore a declaratory judgment will not remedy the wrong being challenged and plaintiffs lack standing to pursue these claims.
Judge Kavanaugh concluded that plaintiffs have standing to challenge prayers and the oath for future inaugurations, but that neither violate the Establishment Clause. The prayers, in the forms they have been offered at inaugurations, should be permitted under the U.S. Supreme Court’s decision in Mash v. Chambers upholding non-proselytizing legislative prayer. The words “so help me God” added to the Presidential oath should also be upheld as a long national tradition that is neither proselytizing nor exploitative. Judge Kavanaugh also used his opinion to explain his earlier vote to deny plaintiffs’ motion for the court to eliminate at oral arguments in this case its usual call asking God to save the court and the country. (See prior posting.) [Thanks to Bob Ritter for the lead.]