A federal appeals court in Washington today dismissed as moot a challenge to the religious components of last year's inaugural ceremony, including the inaugural prayer and presidential oath, and the court said the plaintiffs do not have standing to challenge the 2013 and 2017 inaugurations.
Michael Newdow, a prominent atheist and lawyer, unsuccessfully sought an injunction in the U.S. District Court for the District of Columbia to block Chief Justice John Roberts Jr. from delivering the phrase “so help me God” to President-elect Barack Obama in January 2009. Newdow claimed, among other things, the phrase is a violation of the Establishment Clause of the First Amendment when it is delivered by the Chief Justice of the United States. Two private ministers, Revs. Rick Warren and Joseph Lowery, spoke at the inauguration.
“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,” Judge Janice Rogers Brown wrote for the U.S. Court of Appeals for the D.C. Circuit today. “It is therefore moot.” Click here for the opinion.
Newdow argued for the plaintiffs in the D.C. Circuit last December. Justice Department attorney Lowell Sturgill Jr. of the Civil Division argued the case for Chief Justice John Roberts Jr. Dominic Perella, an associate in the Washington office of Hogan Lovells who concentrates on appellate litigation, argued for the Presidential Inaugural Committee, among others.
Brown, writing for a three-judge panel, which included Judges Douglas Ginsburg and Brett Kavanaugh, said there is no law that mandates the president-elect carry out an inaugural ceremony. The appeals court called the ceremony a “peculiar institution,” saying that it is entirely up to the discretion of the president or president-elect.
“The named defendants are powerless to direct, say no to, or otherwise stop the future President if he wishes to have his ceremony contain the offending elements,” Brown wrote. “Therefore, issuing an injunction to prevent them from implementing the future President’s inaugural plan would be folly, akin to enjoining a sound technician from turning the Chief Justice’s microphone on when administering the oath.”
The appeals court said the plaintiffs lack standing to pursue an injunction against those individuals who could be invited to deliver the presidential oath and those persons who could lead a prayer. Brown said the plaintiffs are essentially seeking an "injunction against the world. "There is another name for that type of generally applicable relief: legislation. And that’s not within the power of the courts," the appeals court said.
Kavanaugh wrote a separate, concurring opinion, that said the plaintiffs do have standing to challenge the religious components of the inauguration. But Kavanaugh said the longstanding practices that the plaintiffs challenge do not violate the Establishment Clause. Kavanaugh notes that the U.S. Supreme Court has, over many years, ruled in religious display and speech cases.
“To ignore the import of those cases for the standing analysis, one would have to believe the Supreme Court repeatedly overlooked a major standing problem and decided a plethora of highly controversial and divisive Establishment Clause cases unnecessarily and inappropriately,” Kavanaugh wrote. “I find that prospect extremely unlikely.”
Kavanaugh said the words “so help me God” in the presidential oath are not “proselytizing or otherwise exploitative” and the use of the phrase is “deeply rooted in the Nation’s history and tradition.”