- The Washington Times - Thursday, January 13, 2005

A federal judge is scheduled to rule today on a California atheist’s lawsuit seeking to bar clergy-led prayer during President Bush’s second inauguration next week.

Judge John D. Bates yesterday heard oral arguments in the case during a two-hour hearing before a packed courtroom in the U.S. District Court for the District of Columbia. Michael Newdow, the 50-year old Sacramento, Calif., lawyer who filed the suit against President Bush last month, took part in the proceedings by telephone.

Outside the courthouse, representatives of religious groups protested Mr. Newdow’s suit. The Rev. Patrick Mahoney, executive director of the Christian Defense Coalition, and the Rev. Rob Schenck, president of the National Clergy Council, held a brief prayer service before the hearing.

They also carried petitions with 22,000 signatures they have collected supporting prayer in the inauguration, saying they will present the documents to the court today. They also plan to give copies to the Presidential Inaugural Committee.

Mr. Newdow pressed his claim that any prayers acknowledging a deity, Christian or otherwise, violate the establishment clause of the First Amendment, which states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

“The government is coming out and saying, ‘OK everybody, while you watch, we are a Christian nation,’” Mr. Newdow said. “It is a declaration to the nation and the world that we are a Christian nation.”

Mr. Newdow, a staunch atheist, says this causes him personal injury by making him feel like an “outsider.” Repeatedly during yesterday’s hearing, he compared prayer during the inauguration to discrimination against blacks.

“This is just as harmful,” he said.

Mr. Newdow spent much of his time explaining how this lawsuit differs from one he brought in 2002. That suit 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.

He said he did not attend the 2001 inauguration, but plans to attend next week’s event, so the prayers will be more forcefully “imposed” on him.

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 performed.

Judge Bates pressed Mr. Newdow and Mr. Bush’s attorneys on whether the clergy-led prayers were official governmental action or private touches on the inauguration added by the president acting in a nonofficial capacity.

The president’s attorneys asserted that the clergy’s presence is the president’s preference, which is protected under the First Amendment’s free exercise clause.

“This is not state action,” said George Terwilliger, one of five attorneys representing Mr. Bush.

He said it would be a serious matter for the court to “cross the separation of powers” and enjoin the president from carrying out his personal wishes at a public ceremony.

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.”

Mr. Graham will not lead prayers this year. Instead, the Rev. Luis Leon, pastor of St. John’s Episcopal Church, where President Bush worships when he is in Washington, will deliver an invocation. Mr. Caldwell will give the benediction, according to the official inaugural program.

Both clergymen were chosen by the president.

In his complaint, Mr. Newdow has asked the court for injunctive relief, which would allow the ruling to take effect before the inauguration.

Mr. Mahoney said he thought Mr. Newdow would have attended the hearing if there was a strong probability the court would rule in his favor. He said he was troubled by Mr. Newdow’s comparison of prayer to racial discrimination.

The legal debate centers on two Supreme Court cases — Marsh v. Chambers in 1983 and Lee v. Weisman in 1992.

The argument for prayer at the inauguration is based on the establishment of chaplains in Congress at its inception, before the Bill of Rights was passed prohibiting any “law respecting an establishment of religion.”

When the presence of chaplains in the Nebraska state legislature was legally challenged in 1983 by Ernest Chambers, a Nebraska lawmaker, the Supreme Court ruled against him, saying the practice had a “special nook” because it was a long-standing custom to have government-paid chaplains.

However, Mr. Newdow makes 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 in his complaint. “This is public, not just for” lawmakers.

Mr. Newdow gained national attention when he argued before the Supreme Court in 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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