 by David Whitney McClatchy Newspapers January 15, 2005
U.S. District Judge John D. Bates, noting that prayer has been a part of presidential inaugurals since George Washington took the oath of office, said he found nothing in Newdow's challenge that would justify stopping it now. "Newdow faces numerous and considerable obstacles to prevailing on his claims," wrote Bates, a jurist on the federal bench for the District of Columbia, in a 49-page opinion flatly rejecting Newdow's various challenges to prayer being a part of Bush's inaugural ceremony Jan. 20. Newdow, reached in Sacramento after the ruling, said he was not surprised. "He obviously put a lot of thought into it," Newdow said of Bates. "I obviously disagree with his conclusions. But I expected this is what he'd do." Last year the U.S. Supreme Court rejected Newdow's challenge to the recitation of the Pledge of Allegiance in his daughter's Elk Grove school because its reference to "under God" was a violation of the constitutional proscription against government establishment of religion. In that case, the justices concluded that Newdow did not have standing, the legal term that essentially means the authority to bring the case, because he did not have custody of his child. Since then Newdow has been scouting for other cases to raise the issue again. In the case before Bates, Newdow argued that the recitation of prayers at the inaugural ceremonies was a similar violation of the separation of church and state. This is not the first time Newdow has challenged inaugural prayer. After watching Bush's first inauguration on television and being made to feel like an "outsider" because of such "religious activity," Newdow filed suit to stop it from happening again. After several trips around the courthouse, that case was finally dismissed. The dismissal was upheld by the 9th U.S. Circuit Court of Appeals on the basis that Newdow had not said with any specificity how he had been injured by watching the televised proceeding. Newdow plans to attend the inauguration next week. Bates said in his ruling that he didn't see how Newdow would be any more offended by attending the inauguration than by watching it on television in 2001. "Not only is the television viewer more likely to see and hear the reading of the prayer than a person standing or sitting far away from the podium on the Capitol grounds, but a mature adult such as Newdow is unlikely to suffer any meaningful coercion from his physical presence in the audience so as to enhance his injury," Bates said. Nonetheless, Bates said, the only way to fix the harm claimed by Newdow would be to prevent Bush from inviting a clergyman to the stage to pray. And on that, Bates said there is "longstanding legal authority" that the courts lack the power to enjoin the acts of presidents. There are a few exceptions to the general rule, Bates said, but none of them are helpful to Newdow. In fact, Bates said, pressing his case for another exception creates a Catch-22 for Newdow. "The court's grave concerns about its power to issue an injunction against the president, which is the only way of redressing Newdow's alleged injuries, places in peril Newdow's standing to bring the action," Bates said. Newdow said he will immediately file an appeal, which he also expects to lose. "The point here is that someone has to try to uphold the Constitution," Newdow said.
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