Court Denies Preliminary Injunction in Newdow Suit

January 16, 2009


Yesterday the     Washington Post     reported that federal district judge Reggie B. Walton has denied the temporary injunction sought by the plaintiffs in   Newdow v. Roberts . This decision allows Barack Obama’s oath of office to include the added words "so help me God." It also allows clergy to deliver a benediction at Tuesday’s inauguration.    According to     Christianity Today   , Judge Walton  equated inaugural prayers with legislative prayer allowed under Supreme Court precedent, and questioned whether he had the authority to issue an injunction.

Although the preliminary injunction was denied, the case has not been dismissed.  I have argued in prior postings (   1 ,   2 ,   3 ) that this lawsuit will almost certainly yield precedent that harms the wall of separation.  I have also argued that the best scenario for which defenders of church-state separation can hope is for the court to dismiss the case on procedural grounds, such as the plaintiffs’ lack of standing.  Even this result would be a significant setback.  Although the press naïvely downplays standing decisions as mere legal technicalities, the law on standing impacts enormously our ability to prevent breaches of the Establishment Clause.  For instance, the Freedom From Religion Foundation’s lawsuit challenging aspects of George Bush’s Faith Based and Community Initiatives program (     Hein v. FFRF   ) led to a disastrous opinion by the Supreme Court’s conservative faction that stripped taxpayers of the right to challenge expenditures by the executive branch that violate the Establishment Clause.

Secularism’s defenders should use the courts to enforce government neutrality in matters of religion—both among religions and between religion and no religion.  But any legal challenge must be planned strategically with an eye to the likely results.  The likely result of this case is almost certain to be unpleasant.