Inaugural Countdown: Legal Challenge to Inaugural Oath and Prayer

Yesterday in a packed courtroom in Washington D.C., U.S. District Judge Reggie Walton in Newdow v. Roberts dismissed a constitutional challenge to the inclusion of religious references and prayer at Tuesday’s inaugural ceremony on the basis that the plaintiffs failed to show “concrete and immediate” harm and thus lacked standing to request extraordinary injunctive relief. At issue in Newdow v. Roberts was whether the U.S. Supreme Court Chief Justice can administer the oath of office with the additional words “so help me God” and whether clergy can deliver an invocation and benediction with references to God. The lead plaintiff, Michael Newdow, previously unsuccessfully challenged the inclusion of prayers during George W. Bush’s swearing-in ceremonies in 2001 and 2005. The dismissal avoided the unprecedented step of an injunction against the U.S. Supreme Court Chief Justice.

Some major new agencies, such as USAToday and the Associated Press, incorrectly describe the decision as not blocking President-elect Obama from saying “so help me God.” The AP title is “Judge won’t order Obama not to use ‘God’ in oath.”

As clarification, the lawsuit seeks to prevent the Supreme Court Chief Justice, as the official administrator of the oath, from saying the phrase and thus requiring President-elect to respond with the phrase as a condition of employment. The lawsuit does not seek to prevent the President-elect from saying it voluntarily.

Plaintiffs

Thirty individuals and eleven organizations representing a coalition of atheists, agnostics, and humanists.

Defendants

U.S. Supreme Court Chief Justice John Roberts, Jr., the Presidential Inaugural Committee, the Joint Congressional Committee on Inaugural Ceremonies, the Armed Forces Inaugural Committee, the Committees’ officers, and the two clergy invited to speak at the 2009 inaugural ceremony: Rev. Rick Warren and Rev. Joe Lowery.

Procedural

The decision was limited to the motion for a preliminary injunction. Because the plaintiffs sought a preliminary injunctive relief, the legal standard requires the plaintiffs to demonstrate a concrete and immediate harm to warrant extraordinary injunctive relief. Vague or speculative injury is not sufficient. See Wisconsin Gas Co. v. Fed. Regulatory Comm’n, 758 F.2d 669, 674 (D.C. Cir. 1985) (“First, the injury must be both certain and great; it must be actual and not theoretical”). The court did not rule on the defendant’s motion to dismiss.

Legal Issues

The plaintiffs argue that religious references and prayers at the official ceremony violate the First and Fifth Amendments of the U.S. Constitution and the Religious Freedom Restoration Act (“RFRA”). Further, they contend that religious references are void as against public policy.

Establishment Clause of the First Amendment

Plaintiffs first argue that the alteration of the presidential oath of office, specified in Article II of the Constitution, to include “so help me God,” violates the Establishment Clause of the First Amendment. The Establishment Clause of the First Amendment of the Bill of Rights states that “Congress shall make no law respecting an establishment of religion.” Second, the plaintiffs argue that government-sponsored invocations and benedictions violate the Establishment Clause.

The plaintiffs contend that the first verified use of the “so help me God” phrase occurred in 1881 when Vice President Chester A. Arthur took the oath, after President James Garfield died in office. They also argue that it was used consistently until 1933.

The plaintiffs abandoned an earlier argument in 2001 that suggested an injunction against the President-elect to add those words. Their argument is that the Chief Justice, as the official administrator of the oath, cannot add those words. Further, they contend that the Chief Justice would be altering the text of the U.S. Constitution and has no authority to do so.

The Establishment Clause essentially embodies the common phrasing “a wall between church and state.” The Clause prevents the government from preferring a particular religion over another. Moreover, government cannot prefer all religions. The Clause also prevents coercion by the government, such as teacher-led prayer in public school. Government also cannot endorse religion if the purpose is purely religious, such as the 10 Commandments in a courthouse is not allowed. The bottom-line is that the Establishment Clause favors neutrality.

For a law to violate the Establishment Clause, the courts apply the 3-part Lemon test: (1) the purpose must be secular, (2) the primary effect must not be to advance religion, (and (3) government must not cause excessive entanglement with religion.

There are exceptions to the Lemon test, as given in the landmark case of Marsh v. Chambers, 463 U.S. 783, 792 (1983). Notably, the Marsh case does not rely on the Lemon test. In Marsh, the Court examined whether the Nebraska legislature’s historical practice of a chaplain-led opening prayer in an event using public funds violated the Establishment Clause. The Court did not apply the Lemon test, rather it consider whether the practice was “deeply embedded in the history and tradition of this county.” The Court remarked that the “practice of opening sessions with prayer has continued without interruption ever since that early session of Congress.”

Here, the plaintiffs rely heavily on Marsh to conclude that the current inaugural prayer is insufficient to constitute a historically-based permissible practice. They point to the fact that the tradition of prayer was not consistently practiced until 1937 — that only 18 of the past 57 presidential inaugurations included clergy-led prayers. The Courts remain unconvinced that a practice must date back too the origins of the country to be considered historical tradition. Thus, the favored argument is that the invocation or benedictions have become part of the inauguration protocol through historical practice.

The plaintiffs omit any reference to County of Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573 (1989). In that case, the Supreme Court revisited Marsh. The case involved whether a combined religious display of a Chanukah menorah, a Christmas tree, and a sign saluting liberty could be displayed at a public courthouse. A divided Court examined specific religious references as compared to general religious references.

The plaintiffs also rely on Lee v. Weisman, 505 U.S. 577 (1992). There, the Supreme Court declared clergy-led non-sectarian prayer at the graduation ceremonies of public schools to be unconstitutional because of the coercive effect on attendees. See also Engel v. Vitale, 370 U.S. 421 (1962). Relying on the Lee holding, the plaintiffs here argue that children will be present at the inauguration and will watch the inauguration on the television. Thus, the plaintiffs argue that the upcoming inauguration is similar in its coercive atmosphere for the children present.

Should the current case go forward, the question will be whether the court will apply the Lemon test or the Marsh test. Does George Washington’s attendance at St. Paul’s Chapel after his inauguration constitute evidence that inaugural prayer can be traced to the founding of this country and thus permissible under Marsh? Does the traditional line of government-sponsored-prayer cases under the Lemon test favor a finding in a favor of inaugural prayer?

Free Exercise Clause of the First Amendment

The plaintiffs argue that the alteration of the oath of office and the clergy-led inaugural prayer violate the Free Exercise Clause of the First Amendment of the U.S. Constitution. The Free Exercise Clause grants individuals the freedom of thought or belief. The Clause prohibits government regulation of religious thought or belief. As part of that, the government may not: (a) require an oath or belief as a condition of employment, (b) inquire into the truth of one’s belief, and (c) ask about the sincerity of a one’s belief.

The plaintiffs argue that their right to avoid prayer is violated by having to listen to a prayer at inauguration. This argument is weak and their complaint lacks any reference any prior legal case that government-sponsored prayer infringes, or could infringe, on the rights of a disfavored religion. The plaintiffs rely on unrelated case law under the Establishment Clause and the right to practice one’s religion in private life without interference.

To succeed on an allegation of a Free Exercise Clause violation, the legal standard requires the plaintiffs to show that the government action “forces them to engage in conduct that their religion forbids or that it prevents them from engaging in conduct that their religion requires.” Henderson v. Kennedy, 253 F.3d 12, 16 (D.C. Cir. 2001). Here, the plaintiffs must convince the court that they are “forced” to engage in prayer, without means to avoid it.

Thus, the President-elect could chose not to take a oath containing “so help me God” as a condition of employment. The Free Exercise Clause does not grant the right of objection to a third party. Thus, although the President-elect could bring a cause of action if desired, the plaintiffs in this lawsuit could not.

Due Process Clause of the Fifth Amendment

The plaintiffs claim that an alternation of the oath and the inclusion of an inaugural prayer constitute a deprivation of liberty and thus a violation of the Due Process Clause of the Fifth Amendment of the U.S. Constitution. This cause of action is less than one page in the plaintiff’s complaint for a reason. It is a weak argument only tangentially supported, if that, by two cases: one about sovereign impartiality and the other about race-based classifications

Religious Freedom Restoration Act (“RFRA”)

The plaintiffs argue that an alternation of the oath and the inclusion of an inaugural prayer constitute a violation of the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb. The RFRA is a 1993 federal law that codified the Sherbert Test. It mandates that a strict scrutiny be applied to claims involving the Free Exercise Clause. The strict scrutiny test is a 3-part test: (1) does the person have a claim involving a sincere religious belief, (2) does the government action impose a substantial burden on the person’s belief or conduct, and (3) does the government have a compelling state interest that is the least restrictive or least burdensome to the religion?

Here, the plaintiffs argue that the state has failed to meet the burden of demonstrating a compelling state interest and that this failure equates to a violation of the RFRA. The plaintiffs have not demonstrated that the government action imposes a substantial burden on their ability to act on their beliefs.

Void as Against Public Policy

This last cause of action serves as the back-up “catch-all” in case the plaintiffs’ other substantive arguments fail. They argue that the inclusion of religious references will divide, rather than unite, the country. As such, they argue, any religious reference should be excluded from the inauguration. The plaintiffs do not rely on any case law in support of this argument.

U.S. Legal Documents

• U.S. Constitution
• Bill of Rights

Court Documents

• U.S. District Court Judge Reggie Walton
• Newdow v. Bush, 89 Fed. Appx. 624, 2004 WL 334438 (9th Cir. Feb. 17, 2004)

Plaintiffs

• Press Release: Suit Filed to Stop Injection of God into Inauguration
• American Humanist Association
• Newdow v. Roberts, Plaintiff’s Complaint (Dec. 29, 2008)