Washington Times - Newdow Takes Inaugural Complaint to High Court

By Jon Ward
THE WASHINGTON TIMES
January 18, 2005

A California atheist is taking his quest to block clergymen from publicly praying during President Bush's inauguration Thursday to the U.S. Supreme Court.
    Michael Newdow, a lawyer from Sacramento, Calif., will file an appeal with the high court today seeking an injunction to thwart Mr. Bush's plans to have two pastors say prayers during his inauguration.
    The U.S. Court of Appeals for the District of Columbia rejected Mr. Newdow's emergency request for an injunction late Friday, hours after a federal judge also denied his request.
    "I expect [the Supreme Court will] deny that, too. But it's violating the Constitution," Mr. Newdow, 50, said yesterday. "They'll do it the same way, I expect. They'll just say, 'Denied.' "
    U.S. District Court Judge John D. Bates denied Mr. Newdow's request Friday, saying an injunction likely would not succeed. However, the judge did not dismiss the case, and asked Mr. Newdow and the president's attorneys to submit additional filings.
    If the Supreme Court rejects his case, Mr. Newdow said, Judge Bates probably will dismiss his lawsuit in its entirety.
    Mr. Newdow has argued in court that prayer by Christian ministers is akin to racial discrimination because it makes him, a staunch atheist, feel like an "outsider." He also contended that prayer at such a public event is a declaration that America is a "Christian nation."
    He said it violates the establishment clause of the First Amendment, which states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."
    During Mr. Bush's inauguration in 2001, the Rev. Franklin Graham and the Rev. Kirbyjon Caldwell said prayers. This year, the Rev. Luis Leon, pastor of St. John's Episcopal Church, where Mr. Bush worships when he is in Washington, will deliver an invocation. Mr. Caldwell will offer the benediction. Both clergymen were chosen by the president.
    In rejecting Mr. Newdow's request, Judge Bates on Friday said that clergy-led prayer does not necessarily violate the Constitution and thats courts do not have power in most cases to order the president to "take an official act." The judge ruled that an injunction against clergy-led prayers would not serve the public interest and would disrupt a carefully planned inaugural ceremony.
    Mr. Newdow's case "has no merit," said Jay Sekulow, chief counsel of the American Center for Law and Justice, a D.C.-based public-interest law firm specializing in constitutional law that filed a brief supporting inaugural prayers.
    "History was very much against [Mr. Newdow] here," Mr. Sekulow said.
    Judge Bates noted in his decision that "inaugural prayer can be traced to the founding of this country" and has been a part of inaugurations since 1937.
    Mr. Newdow gained national attention when he argued before the Supreme Court in March for the removal of the phrase "under God" from the Pledge of Allegiance. The court dismissed his case on the grounds that Mr. Newdow could not represent his 10-year-old daughter, who is in the custody of his ex-wife, who believes in God.