- The Washington Times - Monday, January 10, 2005

A California atheist’s lawsuit to prevent Christian clergy from praying in the presidential inauguration should be dismissed because it is a recycled case about an issue that does not violate the U.S. Constitution, attorneys for President Bush said.

“There is no reason to ‘reverse course’ and abandon a widely accepted, noncontroversial aspect of the inaugural ceremony after over 200 years of this proper solemnization of a national event,” the president’s attorneys said in a 65-page response to the suit.

Assistant Attorney General Peter D. Keisler, who filed the response Friday, wrote that atheist Michael Newdow, a Sacramento, Calif., doctor and lawyer, filed a similar lawsuit in 2002 that was rejected by the U.S. District Court for the Eastern District of California and the 9th U.S. Circuit Court of Appeals, based in San Francisco.

Mr. Newdow’s “current action should be dismissed for this reason alone,” Mr. Keisler said.

A hearing on the lawsuit is scheduled for Thursday at the U.S. District Court for the District of Columbia, where Mr. Newdow filed his complaint last month.

In his lawsuit, Mr. Newdow said a benediction and convocation by Christian ministers at the inauguration violates the establishment and exercise clauses of the First Amendment, which state that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

Even if the court were to rule in Mr. Newdow’s favor, the president could still place his hand on a Bible when sworn in, and Christian songs could still be played.

During Mr. Bush’s inauguration in 2001, the Rev. Franklin Graham and the Rev. Kirbyjon Caldwell uttered Christian prayers, which Mr. Newdow has called “constitutionally offensive.”

Inauguration organizers have yet to announce who will pray during next week’s ceremony, but they confirmed an invocation and a benediction will be held by ministers chosen by the president.

Mr. Newdow has asked the court for injunctive relief, a ruling that would take effect in time to be enforced at the inauguration.

In his response, Mr. Keisler said that even though Mr. Newdow is “personally offended by such prayers,” his objections have no standing for a federal lawsuit, citing a 1983 U.S. Supreme Court ruling that upheld the establishment of chaplains and the utterance of prayers in state legislatures.

However, Mr. Newdow argued in his lawsuit that there is a distinction between prayer in government chambers and prayer at a presidential inauguration.

“This is the most important public ceremony we have in our public existence, the inauguration,” he wrote. “This is public, not just for [lawmakers].”

The American Center for Law and Justice (ACLJ), a D.C.-based public-interest law firm, has filed a 24-page amicus brief in support of Mr. Bush.

“The expression of prayer at the presidential inauguration is not only constitutional, but an important part of the history and heritage of this nation,” said Jay Sekulow, the ACLJ’s chief counsel.

Mr. Newdow became a national figure when he argued before the Supreme Court last March for the removal of the phrase “under God” from the Pledge of Allegiance. The court dismissed his case on the grounds that Mr. Newdow could not represent his 10-year-old daughter, who is in the custody of his ex-wife and who believes in God.

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