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Judge Refuses to Ban Prayer at Swearing-In

Ruling Says Bush May Invite Ministers to Speak Despite Church-State Divide

By Carol D. Leonnig
Washington Post Staff Writer
Saturday, January 15, 2005; Page A08

A federal judge yesterday rejected a California atheist's attempt to bar President Bush from having ministers say prayers at the inauguration, saying the harm was not grave enough to issue such a dramatic emergency order.

U.S. District Judge John D. Bates ruled that Michael Newdow had raised very important and complicated questions about the Constitution's promise of separation of church and state. But he concluded that it was not likely Newdow could prove that hearing religious references during the inauguration ceremony would cause him irreparable damage.

Atheist Michael Newdow says that the Constitution is on his side but that his cause bucks the public's desire to have religion in government. (Michael Lutzky -- The Washington Post)

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Full Text: Opinion Filed in Newdow v. George W. Bush

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"The balance of harms here, and particularly the public interest, does not weigh strongly in favor of . . . the unprecedented step of an injunction against the President," Bates wrote in a 50-page decision.

"There is a strong argument that, at this late date, the public interest would best be served by allowing the 2005 Inauguration ceremony to proceed on January 20 as planned," Bates stated. "That would be consistent with the inclusion of religious prayer or reference in every inauguration commencing with the first inauguration of President Washington in 1789. To do otherwise, moreover, would at this eleventh hour cause considerable disruption in a significant, carefully-planned, national event, requiring program and other adjustments."

The decision sided with arguments made by attorneys for the president and inaugural committees, who said that Bush had a right to have ministers speak during his inauguration and that Newdow would suffer little if at all by hearing brief references to religion. Newdow had argued that acknowledgements of God do not solemnize public occasions but lend them to ridicule.

The ruling was another in a series of setbacks for Newdow, a Sacramento lawyer and doctor who has made it his avocation to stamp out overtly religious references from public, government-sponsored ceremonies and institutions. He lost a similar challenge before the 2001 inauguration. Last year, on technical grounds, the Supreme Court ruled against him in his effort to bar the mandatory recitation of the Pledge of Allegiance in public schools. He objected to the phrase, "One nation, under God."

Newdow said in an interview yesterday that he will ask the U.S. Court of Appeals to overrule Bates, but he acknowledged that he does not have high hopes for success. Although he took issue with the judge's ruling, he praised Bates for thoroughly airing the issues in a lengthy hearing Thursday.

During that hearing, Newdow argued that the Constitution and numerous Supreme Court rulings clearly prohibit the government from sponsoring prayer at public events. He said yesterday that he expected to be turned down as an unpopular rabble-rouser.

"To uphold the Constitution in this case, someone would be castigated beyond belief by a public that wants religion in their government. That's what [most] people want," Newdow said. "There is an inherent bias in a case like this to see if you can find a way out."

George Terwilliger, an attorney for the Presidential Inaugural Committee, said yesterday that Newdow appeared to be oversimplifying the Constitution. He said that people seeking an emergency injunction must meet a very high legal test and that Newdow failed.

"The president's personal choice . . . is something that under the Constitution has to be respected by the courts," Terwilliger said. "There was never an intent by the framers of the Constitution to ban any reference to a deity from the public square."

In his ruling, the judge said that Newdow had to meet several tests to win an emergency order: show that he had a substantial likelihood of prevailing in the case, demonstrate that he would suffer irreparable harm and show that no others would be harmed and the public interest would be served by an order barring the prayers.

Newdow, who recently filed a new challenge to the Pledge of Allegiance, said the inauguration is perhaps the most public of all government-sponsored national ceremonies. He argued that the event should not provide the president with an opportunity to make non-religious citizens and non-Protestants feel like outsiders.

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