c. 2005 Religion News Service

WASHINGTON _ A federal court on Friday (Jan. 14) rejected an atheist’s attempt to block clergy-led prayer at President Bush’s inauguration next week.

The U.S. District Court for the District of Columbia denied a petition for a preliminary injunction brought by Michael Newdow, best known for his unsuccessful suit to remove the words “under God” from the Pledge of Allegiance.

In a telephone interview, Newdow said he was not surprised at the outcome and would attempt to appeal because the court had reached “the wrong conclusion.”

In rejecting the petition, U.S. District Judge John Bates said Newdow had “not clearly established” that inaugural prayer violates the separation of church and state. Newdow also failed to show how he would suffer harm by hearing such prayer, the judge said.

Newdow, a self-described atheist, said the tradition of prayer at a presidential inaugural did not date back to the founding fathers, but was begun in 1937 at the swearing-in of Franklin D. Roosevelt.

“It is an offense of the highest magnitude that the leader of our nation _ while swearing to uphold the Constitution _ publicly violates that very document upon taking his oath of office,” Newdow said in his brief filed Dec. 16. He participated in a court hearing Thursday via teleconference from his home in Sacramento.

Calling inaugural prayer “constitutionally offensive oratory,” Newdow said the long-standing practice violates the First Amendment’s Establishment Clause, which calls for a separation of church and state.

“Imagine if somebody stood up and said God doesn’t exist,” Newdow told the court.

Jay Sekulow of the American Center for Law and Justice, who filed a brief on behalf of Bush and the Inaugural Committee, said Newdow “is on a national crusade to remove every vestige of religious heritage from America’s public life.”

“He is attempting to completely eliminate a time-honored tradition that is really part of the American experience. It would be ironic that a nation founded on religion would sever its religious ties.”

In his highly publicized suit to remove “under God” from the Pledge,a federal court agreed with Newdow, but the Supreme Court dismissed the case last year.

The Rev. Rob Schenck led a tiny rally in support of the prayer on the steps of the federal court building before Thursday’s hearing. Schenck, president of the National Clergy Council, was joined by representatives of Faith and Action in the Nation’s Capital and the Christian Defense Coalition.

“Sadly, over the last 25 years, we have seen a systematic erosion of religious freedom in the public square,” he said. “We have been quiet, but those days are now over. We will not be silent. Our voices will be heard.”

Schenk says the courthouse itself is testimony to the importance of religion in American public life, pointing to a large statute _ paid for by public dollars, he said _ containing an image of the cross, the Ten Commandments, a praying pilgrim and a descending dove.

This is the second suit by Newdow seeking to put a stop to inaugural prayer. The first suit, filed in 2001 in the United States District Court for the Eastern District of California, was dismissed, holding that a court lacks the power to control what the president or anyone else says at a presidential inauguration. The Ninth Circuit Court of Appeals affirmed the dismissal.

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Justice Department lawyer Edward White said that Newdow lacked standing in his latest suit because he already litigated the case and the “doctrine of issue preclusion bars (him) from relitigating his standing to challenge prayers at the Inaugurations.”

“Mr. Newdow is fishing around for the right court,” White said at the hearing. Now “he is taking a second bite at the apple.”

Normally, plaintiffs are prohibited from bringing the same suit in different courts, so-called “forum shopping.” But Newdow says he is not re-litigating because the facts are different this time. In the earlier case, he did not have an inaugural ticket, and now he does and plans to attend the Thursday (Jan. 20) event. That, he said, means he will be in a more “coercive” environment, and will either be forced to leave or to listen to the prayer.

“I will be standing there and I will have something that will be imposed on me,” said Newdow, noting that he cannot “turn off the inauguration” as he could if were he watching TV.

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