Defendants File Answers in Newdow Inauguration Lawsuit

January 11, 2009

Another update on   Newdow v. Roberts , Michael Newdow’s lawsuit challenging the use of prayer and the addition of the words "so help me God" at the Presidential Inauguration (   see my prior post ): both the Presidential Inauguration Committee and the federal officials named the lawsuit have filed answers to Newdow’s complaint.    The Presidential Inauguration Committee’s brief argues that the plaintiffs lack standing to sue because it is Barack Obama, and not the Committee, who will make decisions about the inauguration.  The Committee also argues that it is not a government entity, and therefore is not subject to the strictures of the First Amendment or the Religious Freedom Restoration Act.    The federal officials’ brief also attacks the plaintiffs’ standing, and outlines multiple arguments on the merits of the complaint.  Among other things, the federal officials skewer Newdow and the other plaintiffs (including the American Humanist Association, the Freedom From Religion Foundation, Atheists United and others) for failing to mention a published federal court decision rejecting Newdow’s challenge to the use of prayer in the 2005 inauguration, as well as Newdow’s failed lawsuit regarding the 2001 inauguration.

In addition,   CNN has reported that Barack Obama has requested that Chief Justice Roberts add the phrase "so help me God" to the constitutionally prescribed oath of office.  This moots the plaintiffs’ claim against the use of the altered oath.  The   plaintiffs’ complaint states: "If President-elect Obama (as a black man fully aware of the vile effects that stem from a majority’s disregard of a minority’s rights, and as a Democrat fully aware of the efficacy his Republican predecessor’s "so help me God" oath additions) feels that the verbiage formulated by the Founders is so inadequate that he needs to interlard his oath with a purely religious phrase deemed unnecessary by the first twenty presidents, Plaintiffs have no objection at this time. The President, like all other individuals, has Free Exercise rights, which might permit such an alteration."

I have argued   elsewhere that if the district or appellate courts reach the merits of the complaint, this lawsuit is virtually certain to yield case law that harms the wall of separation.  My hope is that the court will reject the case on procedural grounds (e.g., plaintiffs’ lack of standing).