D.C. Circuit: Atheists can’t challenge use of ‘God’ in inaugurations

Friday, May 7, 2010

WASHINGTON — Atheists who oppose prayer and other religious elements in presidential inaugurations lost another round in their legal fight today.

A three-judge panel of the U.S. Circuit Court of Appeals for the District of Columbia has upheld the dismissal of a lawsuit that sought to stop Chief Justice Roberts from adding the words “so help me God” to the 35-word inaugural oath outlined in the Constitution.

The group of atheists and agnostics, led by Michael Newdow, also wanted to stop ministers from saying prayers at President Barack Obama's inauguration and wanted the court to eliminate religion from future inaugurations.

Five days before the Jan. 20, 2009, inauguration, U.S. District Judge Reggie Walton refused to force Roberts not to add “so help me God” to the oath.

Today, two D.C. Circuit judges — Janice Rogers Brown and Douglas Ginsburg — said it was too late to act on Obama's inauguration and the court cannot block religious elements at future events when the participants are not yet known.

Whether the 2009 ceremony’s incorporation of the religious oath and prayers was constitutional may be an important question to plaintiffs, but it is not a live controversy that can avail itself of the judicial powers of the federal courts,” Brown wrote in Newdow v. Roberts. “It is therefore moot.”

Judge Brett Kavanaugh agreed with the judgment, but wrote in his concurring opinion: “Under the Supreme Court’s precedents, plaintiffs have standing to raise an Establishment Clause challenge to the Inaugural prayers and to the inclusion of the words ‘so help me God’ in the official Presidential oath administered at the public Inauguration ceremonies.”

Kavanaugh added: “I would reject plaintiffs’ claims on the merits because those longstanding practices do not violate the Establishment Clause as it has been interpreted by the Supreme Court.