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Atheist Challenges Inaugural Prayers

By Carol D. Leonnig
Washington Post Staff Writer
Friday, January 14, 2005; Page B01

A California atheist asked a federal judge yesterday to stop President Bush from having two Protestant ministers say prayers at the inauguration, arguing that it would violate his constitutional rights to the separation of church and state.

Michael Newdow, a lawyer and doctor who has fought to keep his daughter from being exposed to the Pledge of Allegiance in her public school, said the inauguration is perhaps the most public of all government-sponsored national ceremonies. It should not provide the president with an opportunity to make nonreligious citizens and non-Protestants feel like outsiders, he said.

Michael Newdow seeks injunction. (File Photo)

"This is like the Super Bowl, the Olympics. It's a civic ceremony like no other," Newdow told U.S. District Judge John D. Bates. "The president will swear to uphold the Constitution and then violate the Constitution so heinously by endorsing these religious beliefs . . . and telling everyone this is a Christian nation."

Newdow filed suit last month and participated in yesterday's hearing via a teleconference hookup with the federal courthouse in Washington. The judge said he hopes to issue a ruling today. Bush will be sworn in at noon Thursday at the U.S. Capitol.

Attorneys for the Justice Department and Presidential Inauguration Committee said neither Newdow nor anyone else will be substantially harmed by a short prayer that mentions God or an all-powerful being. They also argued that some form of prayer has been part of every presidential inauguration since the 1937 inauguration of Franklin D. Roosevelt.

"It's the president's choice, and he would like the prayer said," said Edward White, a trial lawyer with the Justice Department. "It's also the long-standing, uninterrupted tradition of our country."

Newdow countered that history does not make the practice right.

"Pretend we had separate bathrooms for black and white people at every inauguration," he said. "Do we accept it when people say, {grv}We've always had this. Nobody's complained'?"

Bates spent more than two hours grilling both sides, and he acknowledged that his ruling might not be the final say on the matter. He told the attorneys that they should speak with the federal appeals court staff today if they hoped to file an emergency appeal of his decision.

During the hearing, Bates indicated that he had some doubts about whether an injunction against the inauguration committees would stop the inaugural prayers, saying that the president could ask the clergy to attend and speak. Bates indicated that he had some reservations about whether a federal court had the power to tell the president how to act in the case.

He sharply questioned government and inauguration committee attorneys about Supreme Court decisions that expressly prohibit prayers at public, government-sponsored events, including school graduations and football games. The judge read aloud an opinion by Justice Antonin Scalia in which the conservative jurist wrote that generations of courts had repeatedly "ruled out of order government-sponsored prayer . . . even when no coercion is present."

"Why shouldn't I be worried about that?" Bates asked the lawyers. "Don't we have something very close to that here?"

Newdow, a single father from Sacramento, has made it his avocation to stamp out overtly religious references from public, government-sponsored ceremonies and institutions. He sued to stop his daughter from being subjected to the phrase "under God" in the Pledge of Allegiance, and he persuaded a the U.S. Court of Appeals for the 9th Circuit to ban it. But the Supreme Court ruled last year that his case was not valid because he did not have custody of his daughter when he filed it. He renewed the legal challenge in California this month by naming as plaintiffs a group of parents who have custody of their children.

This is not the first time that Newdow has targeted the inauguration. A 2001 suit, filed in California, was rejected by the 9th Circuit on technical grounds. The court found that Newdow could not show he would suffer any serious harm. The government argued that he was going to watch the event on television, not attend it. This year, Newdow sought a ticket soon after Bush's reelection and obtained one in late November.

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