- The Washington Times - Friday, January 14, 2005

A federal judge yesterday rejected a California atheist’s request for an injunction to stop clergy-led prayer at next week’s presidential inauguration, but did not dismiss the lawsuit.

Judge John D. Bates denied Michael Newdow’s request in U.S. District Court for the District of Columbia, saying an injunction was not likely to succeed.

Late yesterday, Mr. Newdow, a Sacramento, Calif., lawyer, filed an emergency appeal with the federal appellate court, seeking a ruling by Tuesday. President Bush’s second inauguration is scheduled for Thursday.

In rejecting Mr. Newdow’s request, Judge Bates did not rule on his lawsuit, but instead asked for additional filings from Mr. Newdow and Mr. Bush’s attorneys.

“The case is alive. It is a live controversy,” said Jay Sekulow, chief counsel for the American Center for Law and Justice, a Washington-based public interest law firm that filed a brief in support of prayer.

Mr. Sekulow said he was “confident this flawed legal challenge will fail in the appeals process.”

Mr. Newdow, 50, said the court was “missing the big picture. The Constitution is what this thing is all about.” He added he is requesting a ruling by Tuesday because he will only attend the inauguration if his appeal is granted.

All inauguration ticket holders must pick up their tickets at least one day before the ceremony.

In a hearing on Thursday, Mr. Newdow argued that prayer by Christian ministers is akin to racial discrimination because it makes him, a staunch atheist, feel like an “outsider.” He also contended that prayer at such a public event is a declaration that America is a “Christian nation.”

He said it violates 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.”

Yesterday, Judge Bates said Mr. Newdow’s suit “faces numerous and considerable obstacles to prevailing on his claims.”

The federal judge identified two key obstacles in the atheist’s case. First, clergy-led prayer does not necessarily violate the Constitution. Second, because of the Constitution’s separation of powers, courts do not have power in most cases to order the president to “take an official act.”

Judge Bates ruled that an emergency ruling in Mr. Newdow’s favor would not serve the public interest and would disrupt a carefully planned inaugural ceremony. He also noted that Mr. Newdow bought his inaugural ticket in November, saying his 11th-hour filing made it harder to make a thoughtful decision on the case’s merits.

Mr. Newdow filed his suit Dec. 21.

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.

Mr. Bush’s attorneys said the clergymen’s presence and prayers were the personal preferences of the president, which cannot be directed by the court.

Judge Bates agreed.

“The President’s selection of clergy at his inauguration cannot plausibly be considered ministerial,” he wrote.

Further, Judge Bates wrote that the “prospect” of issuing an injunction against the president “raises serious separation of powers concerns.”

The judge quoted U.S. Supreme Court Justice Antonin Scalia in his 1992 plurality opinion on Franklin v. Massachusetts. When the states sought to prevent the president from giving a census statement to Congress, Justice Scalia wrote, “I think it is clear no court has authority to direct the President to take an official act.”

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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