June 25, 2010 - 12:30pm
D.C. Circuit Dismisses Lawsuit Challenging “Under God” in Presidential Oath Posted by: Brendan D. O'Toole


Michael Newdow is no stranger to litigation.  Usually representing himself, the atheist activist has challenged everything from the recitation of the Pledge of Allegiance in public schools, to the motto “In God We Trust” that is inscribed on our country’s coins and currency.  His claims have usually failed.  And that was the result in Newdow’s most recent legal battle—seeking to prevent President Obama from uttering the phrase “So help me God” at the conclusion of his taking the oath of office.  In fact, Newdow lost similar challenges with respect to President Bush’s inaugural ceremonies in 2001 and 2005.


When Barack Obama was elected President on November 4, 2008, he and his staff began the arduous task of planning and preparing for his inauguration.  Then President-elect Obama asked Chief Justice John Roberts, Jr. to administer the presidential oath of office at the ceremony, and to tack on—as so many previous Presidents have done—the phrase “So help me God” at the end of the 35-word oath.


When Newdow learned of these events, he filed suit seeking to bar the Chief Justice from including the religious reference not only in the 2009 inauguration, but also in those to be administered in 2013 and 2017.  Newdow said that any reference to the Supreme Being by the leader of the Free World amounted to a violation of the Constitution’s separation of church and state.  Newdow faced a tough legal battle from the outset: all of the 50 States in the Union filed amicus briefs opposing his requested relief.  Not surprisingly, the district court found little trouble in dismissing Newdow’s lawsuit, and the D.C. Circuit affirmed.


By the time the matter reached the D.C. Circuit, President Obama had long since taken the oath of office.  The court thus concluded that any challenge to the oath of office during the 2009 inauguration was moot, noting that federal courts may only resolve live “cases” and “controversies.”  Since the 2009 inauguration had taken place, there was nothing left for the court to decide.


The court of appeals also concluded that Newdow lacked standing to challenge the oaths for the 2013 and 2017 inaugurations.  The court said that, even assuming Newdow suffered an injury in fact, because “God” was referenced in the inaugural ceremony (thus offending his atheist sensibilities), he could not show that the injury could be redressed by a decision in his favor.  That is because an injunction against the Chief Justice or certain clergymen would not prevent Newdow’s claimed injury.  The Chief Justice, the appeals court said, “has no legal authority or duty to decide what may be added to the presidential oath”—it is the President who makes such decisions.  As such, the Chief Justice, and certain chosen clergy, are “powerless to direct, say no to, or otherwise stop the future President if he wishes to have his ceremony contain the offending elements.”


The court added that it could not redress Newdow’s claimed injury by imposing injunctive or declaratory relief against the President himself or any future President-elect.  The courts do not have jurisdiction to enjoin a president, nor has any court issued a ruling declaring that a president has acted unlawfully.  Moreover, the President cannot be denied the prerogative of making a religious reference because doing so would abrogate his own First Amendment rights.  The appeals court reasoned:


For sure, if it were otherwise, George Washington could not have begun the tradition by appending ‘So help me God’ to his own oath; Lincoln could not have offered a war-weary nation ‘malice toward none’ and ‘charity for all with firmness in the right as God gives us to see the right’; Kennedy could not have told us ‘that here on earth God’s work’ must be our own; nor could President Reagan have evoked ‘the shining city . . . built on rocks stronger than oceans windswept, God-blessed, and teeming with people of all kinds living in harmony and peace’ in his farewell address.


In a concurring opinion, Judge Kavanaugh somewhat conclusorily found that Newdow had standing and so reached the merits of Newdow’s Establishment Clause claims.  Concluding that use of the words “so help me God” in the presidential oath was not proselytizing or otherwise exploitative, he rejected Newdow’s claims.


Kavanaugh began his First Amendment analysis noting that he did not doubt Newdow’s claim of harm, yet he could not:


Dismiss the desire of others in America to publicly ask for God’s blessing on certain government activities and to publicly seek God's guidance for certain government officials. Plaintiffs suggest that no one should be upset if government ceremonies were entirely cleansed of religious expression; they argue that such a regime would reflect true government "neutrality" toward religion. Others respond, however, that stripping government ceremonies of any references to God or religious expression would reflect unwarranted hostility to religion and would, in effect, "establish" atheism. Cf. Salazar v. Buono, No. 08-472, slip op. at 14-15 (U.S. Apr. 28, 2010) (opinion of Kennedy, J.) ("The goal of avoiding governmental endorsement does not require eradication of all religious symbols in the public realm. . . . The Constitution does not oblige government to avoid any public acknowledgment of religion's role in society."); Lee v. Weisman, 505 U.S. 577, 598 (1992) ("A relentless and all-pervasive attempt to exclude religion from every aspect of public life could itself become inconsistent with the Constitution.").


He also concluded that Newdow’s argument that the words “so help me God” violated the Establishment Clause was foreclosed by Marsh v. Chambers, 463 U.S. 783 (1983), because “[l]ike the legislative prayer in Marsh, the words ‘so help me God’ in the Presidential oath are not proselytizing or otherwise exploitative. Moreover, like the practice of legislative prayer, use of ‘so help me God’ in oaths for government officials is deeply rooted in the Nation’s history and tradition.”