- The Washington Times - Sunday, December 1, 2002

Twenty-two members of Congress and a public interest law firm have asked a federal court to dismiss a lawsuit brought by a California atheist that claims congressional chaplains are unconstitutional.
Michael Newdow, who is based in Sacramento, filed the suit in August. Mr. Newdow is the same atheist whose case received national attention in June when two members of a three-judge panel of the San Francisco-based 9th U.S. Circuit Court of Appeals ruled that the Pledge of Allegiance is unconstitutional because it contains the phrase "under God." Following a huge national outcry, that ruling was immediately stayed pending further review.
"Our country has a deep and cherished history of ensuring that prayer is available to members of Congress," said Jay Sekulow, chief counsel for the American Center for Law and Justice (ACLJ), a public interest law firm specializing in constitutional law.
In a friend-of-the-court brief the group filed Nov. 22 in the U.S. District Court in Washington on behalf of itself and six U.S. senators and 16 House members, the ACLJ held that the U.S. Supreme Court has "clearly upheld the constitutionality of paid chaplains."
The brief specifically cited the Supreme Court's 1983 ruling in the case of Marsh v. Chambers, in which the high court found that chaplains who were paid with public funds are not establishing a religion.
The high court said in that case: "To invoke divine guidance on a public body entrusted with making the laws is not, in these circumstances, an establishment of religion or a step toward establishment; it is simply a tolerable acknowledgement of beliefs widely held among people of this country."
In its brief, the ACLJ says: "If successful here, a strategy such as the plaintiff's will undoubtedly embolden further challenges to other religious expressions in the Capitol, including religious works of art and religious inscriptions in the Capitol Complex, as well as the prayer rooms in the House and Senate Office Buildings.
"The strategy to purge all religious observances and references from American public life must not be permitted to move forward," said the brief filed by the lawmakers and the ACLJ.
The six U.S. senators seeking dismissal of Mr. Newdow's suit are all Republicans: Richard G. Lugar of Indiana; Christopher S. Bond of Missouri; Michael B. Enzi of Wyoming; Rick Santorum of Pennsylvania; Craig Thomas of Wyoming; and George V. Voinovich of Ohio.
Included among the 16 House members wishing to have the Newdow lawsuit dismissed are two Democrats: Reps. Robert T. Matsui of California and Mike McIntyre of North Carolina. Some of the 14 Republicans are Reps. Ernest Istook of Oklahoma, J.C. Watts Jr. of Oklahoma, Jo Ann Davis of Virginia, Charles W. Pickering Jr. of Mississippi and Jim Ryun of Kansas.
Chaplains have led the morning prayer and ministered to members of Congress since 1789.
When he filed his suit last summer in Washington U.S. District Court, Mr. Newdow said he was challenging the taxpayer salaries of both the House and Senate chaplains, who earn $148,000 a year and $130,000 a year, respectively.
But Mr. Newdow said he would oppose the chaplains even if they weren't paid because he sees them as an endorsement of religion by government.
But the ACLJ and the members of Congress who object to Mr. Newdow's litigation believe the plaintiff is the one who is wrong. "This suit is a flawed legal attempt to lash out and pummel people of faith," Mr. Sekulow said, adding:
"We're hopeful that the court will dismiss this suit and send a powerful message that this kind of religious assault cannot be permitted to move forward."
Some members of Congress listed in the brief are also included in another brief filed earlier this year in which the ACLJ asks the 9th Circuit Court of Appeals to reconsider the June ruling of the three-judge panel regarding the validity of the phrase "under God" in the pledge to the flag.
Mr. Newdow, who is an emergency-room doctor and a lawyer, also wants the words "In God We Trust" removed from U.S. coins.


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