NEWDOW et al v. ROBERTS et al

Filing 13

Memorandum in opposition to re 4 MOTION for Preliminary Injunction filed by JOHN ROBERTS, JR, JOINT CONGRESSIONAL COMMITTEE ON INAUGURAL CEREMONIES, DIANNE FEINSTEIN, ARMED FORCES INAUGURAL COMMITTEE, RICHARD J. ROWE. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7: Groppel Declaration, # 8 Exhibit 8: Minear Declaration, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Text of Proposed Order)(Rosenberg, Brad)

NEWDOW et al v. ROBERTS et al

Doc. 13

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA __________________________________________ ) MICHAEL NEWDOW, et al., ) ) Plaintiffs, ) ) v. ) Civil Action No. 08-2248 (RBW) ) HON. JOHN ROBERTS, JR., et al., ) ) Defendants. ) __________________________________________) FEDERAL DEFENDANTS' OPPOSITION TO PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION

GREGORY G. KATSAS Assistant Attorney General JOHN C. O'QUINN Deputy Assistant Attorney General Federal Programs Branch JAMES J. GILLIGAN Assistant Director BRAD P. ROSENBERG ERIC B. BECKENHAUER Trial Attorneys United States Department of Justice Civil Division Federal Programs Branch 20 Massachusetts Avenue, N.W. Washington, D.C. 20001 Tel: [phone] Fax: [phone] [e-mail] Counsel for the Federal Defendants

Dockets.Justia.com

INTRODUCTION Plaintiffs, on the eve of the 56th Presidential Inauguration, have filed a Motion for a Preliminary Injunction seeking the extraordinary (and effectively final) relief of enjoining the invocations and benedictions that have been planned since December 17, 2008, for President-Elect Barack Obama's presidential inauguration. For the lead plaintiff here, however, this is not his second bite at the apple; it is his third: Mr. Newdow has previously -- and unsuccessfully -- sued to obtain equitable relief regarding prayers at the 2001 and 2005 presidential inaugurations, and sought in 2005 -- again unsuccessfully -- to obtain a preliminary injunction barring inaugural prayer that is virtually identical to the preliminary injunction that Mr. Newdow seeks here. To be sure, this case involves plaintiffs beyond Mr. Newdow. Nonetheless, other than the addition of a claim regarding the President-Elect's intention to affirm his oath of office with the traditional phrase "so help me God," plaintiffs' request for injunctive relief here is virtually identical to the request for injunctive relief that Judge Bates of this Court rejected in 2005. Not once, however, does plaintiffs' Memorandum in Support of Plaintiffs Motion for Preliminary Injunction (Dkt. No. 4, Jan. 5, 2009) ("Pl. Mem.") mention either of Judge Bates' published decisions from the 2005 inaugural litigation ("Newdow II"). See Newdow v. Bush, 355 F. Supp. 2d 265 (D.D.C. 2005) (denying motion for preliminary injunction); Newdow v. Bush, 391 F. Supp. 2d 95 (D.D.C. 2005) (dismissing Newdow's complaint). Plaintiffs' Memorandum is equally silent with respect to Mr. Newdow's failed lawsuit regarding the 2001 presidential inauguration ("Newdow I"). Plaintiffs' failure to note these prior decisions is not surprising, as their Complaint here suffers from the exact same defects that doomed Mr. Newdow's previous litigation efforts. Simply put, although plaintiffs allege they are personally offended by inaugural prayers (and now, apparently, by the wishes of the President-Elect to be prompted "so help me God" once he takes the 1

oath of office), a citizen's discomfort or disagreement with government action does not constitute a concrete and particularized injury as required to establish standing for the purposes of the "case or controversy" requirement of Article III. And even if plaintiffs had alleged such an injury, an injunction against the defendants that plaintiffs have named in this lawsuit would not provide the relief that plaintiffs seek. Thus, plaintiffs also lack standing because they have failed to allege a redressable injury as to these defendants. Even if the Court were to conclude that plaintiffs have standing, plaintiffs cannot demonstrate a substantial likelihood of success on the merits, as they must do in order to obtain a preliminary injunction. Plaintiffs cannot prevail on their claim that clergy prayers at presidential inaugurations violate either the First Amendment's Establishment Clause or the Religious Freedom Restoration Act. That claim is plainly foreclosed by Marsh v. Chambers, 463 U.S. 783 (1983), where the Supreme Court, in approving the Nebraska legislature's practice of opening legislative sessions with prayer offered by a paid chaplain, explained that "[t]he opening of sessions of legislative and other deliberative public bodies with prayer is deeply embedded in the history and tradition of this country." Id. at 786. The historical record shows that presidential inaugural prayer, like legislative prayer, is "deeply rooted" in that same history and tradition, and is likewise constitutional. Plaintiffs' novel claim regarding the traditional affirmation, "so help me God" -- long understood to have been invoked by President Washington himself and every President since then -- also fails. Plaintiffs concede that President-Elect Obama is entitled under the Constitution to affirm his oath of office with the very phrase to which plaintiffs object. As set forth below, the President-Elect wishes, after taking the oath of office, to conclude his swearing-in with the traditional phrase "so help me God," and the Chief Justice will accommodate the President-Elect's request. Plaintiffs' legal theory -- that the President of the United States has a First Amendment 2

right to say the words "so help me God" after taking the oath of office, but not to have the same affirmation administered to him -- simply makes no sense. Even if plaintiffs had presented a cogent legal theory, their request for a preliminary injunction should nonetheless be denied. A preliminary injunction would uproot plans for the 56th Presidential Inaugural, which will take place in less than two weeks. That would cause irreparable injury to the President-Elect and the public at large, and alter the status quo by overturning longestablished practice. In short, the preliminary injunction plaintiffs seek here is fundamentally at odds with the broader public interest in maintaining the Nation's traditional inaugural ceremonies. For these reasons, as set forth in more detail below, this Court should deny plaintiffs' lastminute motion for a preliminary injunction. BACKGROUND 1. Newdow I. Newdow's first challenge to inaugural prayers was filed on February 1, 2001, shortly after the January 20, 2001, inaugural ceremonies. At those ceremonies, the Reverend Franklin Graham delivered a prayer. Newdow alleged that Rev. Graham's prayer violated the Establishment Clause because "[t]o offer prayer at an official governmental ceremony is a religious act per se," and because Rev. Graham's prayer "was clearly sectarian as well." See 2001 Complaint ¶¶ 12-13 (attached hereto as Ex. 1). Newdow requested a declaration that President Bush violated the Establishment Clause by "utilizing any clergyman (much less a Christian minister) in his inauguration," and an injunction barring President Bush "from repeating this or engaging in any similar religious acts." Id. at 7.

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The government moved to dismiss the complaint for lack of Article III standing and because Rev. Graham's prayer did not violate the Establishment Clause. On July 17, 2001, the Magistrate Judge issued Findings and Recommendations, concluding that Newdow had Article III standing to bring his action, but suggesting that the action be dismissed "insofar as plaintiff complains about permitting a chaplain (or the President) [to recite] any prayer at the Presidential inauguration." July 17, 2001, Findings and Recommendations, at 12 (attached hereto as Ex. 2). The Magistrate Judge noted that "[f]ormal prayers by Christian ministers have been associated with inaugurations since the inauguration of George Washington." Id. at 8 (citation omitted). "In addition," the Magistrate Judge observed, "every President has included reverent references to the deity in his inaugural address to the nation." Id. at 9. Thus, the "history of inaugural prayers, like the history of legislative prayers, indicates that they were not viewed [by the framers] as violating the Establishment Clause." Id. (citing Marsh v. Chambers, 463 U.S. 783 (1983)). The Magistrate Judge recommended against dismissal, however, "insofar as plaintiff is attacking the specifics of [Rev. Graham's] prayer as a violation of the Establishment Clause." Id. at 12. President Bush and Newdow both filed objections to the Magistrate Judge's findings and recommendations,1 but the District Court adopted them and dismissed Newdow's action insofar as Newdow sought an order that the President or a chaplain may not say any prayer as part of a presidential inauguration. See Order of Sept. 28, 2001 (attached hereto as Ex. 3). Subsequently, the Magistrate Judge issued findings and recommendations suggesting that "the entire case be dismissed for lack of jurisdiction because the courts cannot enjoin the President [or grant declaratory relief] in the circumstances of this case." Dec. 28, 2001, Findings and Recommendations, at 13 (Attached

The government filed objections to the Judge's conclusion that Newdow had Article III standing to challenge the giving of any prayer at a presidential Inauguration. 4

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hereto as Ex. 4). The Magistrate Judge concluded that "the inauguration of the President, and what may be said by the President or his speakers, is wholly integral to the Executive Branch," id. at 7, and involves nonministerial decisions that courts lack constitutional authority to regulate. See id. at 4-7 & n.4 & n.5. In the alternative, the Magistrate Judge recommended that the entire case be dismissed because (a) "prayer per se at the Presidential inauguration does not violate the Establishment Clause," as the District Court had already held, (b) "Newdow lacks standing to challenge the content of the prayer given at future inaugurations," and (c) declaratory relief was unavailable for the same reasons. See id. at 13.2 Newdow filed objections to the Magistrate Judge's December 28, 2001, Findings and Recommendations, and also filed a Motion for Leave to Amend his Complaint to assert claims against Senator Mitch McConnell, in his capacity as Chair of the Joint Congressional Committee on Inaugural Ceremonies ("JCCIC"), and certain other new defendants. The Magistrate Judge issued a final set of findings and recommendations, which suggested that the motion be denied. See Mar. 26, 2002, Findings and Recommendations at 8 (attached hereto as Ex. 5). The Magistrate Judge concluded that a court would lack constitutional authority to regulate Congress's participation in planning and carrying out a presidential Inauguration ceremony, for the same reasons the Magistrate Judge had earlier concluded that a court would lack the power to control what the President or anyone else says at a presidential inauguration. Id. at 6. The Magistrate Judge also concluded that the motion to add Senator McConnell should be denied because Newdow no more had standing to

Newdow lacked standing to challenge the content of the prayer given at future Inaugurations because courts lack constitutional authority to "set[] forth the content of permissible prayer for future presidential inaugurations," Dec. 28, 2001, Findings and Recommendations, at 9, and because the court could not assume that any future presidential Inauguration would necessarily include the kind of specific religious references that Rev. Graham's prayer contained. See id. at 10. 5

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challenge the content of Rev. Graham's invocation by suing Senator McConnell than by suing President Bush. See id. at 6. For example, the Magistrate Judge observed, a court could not issue an injunction directing the President, a Senator, or any other government official to "watch what [the President] and his chosen speakers say" at a presidential inauguration ceremony. Id. at 7. The Magistrate Judge rejected Newdow's suggestion that the President or the JCCIC "could be ordered to ban clergy from the guest list." Id. at 7. That kind of an order, the Magistrate Judge observed, would be clearly invalid from a First Amendment standpoint. See id. at 8.3 Since substituting Senator McConnell "or any other Inauguration associated person or entity" would not affect his recommendation in favor of dismissal, the Magistrate Judge resubmitted his December 28, 2001, Findings and Recommendations, as supplemented, to the District Court. Newdow filed objections, but the District Court adopted the Recommendations in full; it dismissed the case in its entirety, with prejudice. See May 23, 2002 Order at 2 (attached hereto as Ex. 6). The Ninth Circuit affirmed. Newdow v. Bush, 89 Fed. Appx. 624, 625, 2004 WL 334438, at **1 (9th Cir. Feb. 17, 2004). Noting that "we may affirm on any proper ground, even if the district court did not reach the issue or relied on different grounds or reasoning," the Court held that Newdow "lacks standing to bring this action because he does not allege a sufficiently concrete and specific injury. See Valley Forge Christian Coll. v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 482-86 . . . (1982)." Id. The Court added that the district court had not abused its discretion in denying Newdow's motion to file an amended complaint "because amendment would be futile." Id.

See generally McDaniel v. Paty, 435 U.S. 618 (1978) (holding unconstitutional state statute disqualifying clergy from holding state office). 6

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2.

Newdow II. Newdow's second lawsuit challenging inaugural prayer was filed in this Court and

challenged prayer at the 2005 Presidential Inauguration, and is virtually identical to this one. Newdow filed a verified complaint and a motion for a preliminary injunction on December 21, 2004. See Newdow II, 355 F. Supp. 2d at 270. Newdow sued President Bush, the JCCIC, Senator Lott (as Chairman of the JCCIC), the Presidential Inaugural Committee ("PIC"), Craig Jenkins (as Executive Director of the PIC), the Joint Task Force-Armed Forces Inaugural Committee, its commander, and "one or more unnamed clergy (wo)men." Id. at 270 & n.5. Newdow alleged that witnessing inaugural prayers at the 2001 inauguration made him feel "like a second class citizen and a `political outsider' on account of his religious beliefs," and asserted that "[i]t is presumed that Proposed Clergy's prayers [at the 2005 inauguration] will make Plaintiff feel like an `outsider' as well." Id. at 271 (citations omitted). Newdow sought a declaratory judgment that inaugural prayers violate the Establishment and Free Exercise Clauses of the First Amendment and the Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. § 2000bb, et seq. Newdow also asked the Court to enjoin the defendants "`from utilizing any clergymen to engage in any religious act," or alternatively "from utilizing clergymen to engage in Christian religious acts at the 2005 Inauguration or future Presidential inaugurations." Newdow II, 355 F. Supp. 2d 271. On January 14, 2005, Judge Bates denied Newdow's application for a preliminary injunction. Newdow II, 355 F. Supp. 2d 265 (D.D.C. 2005). In analyzing whether the doctrine of issue preclusion made it unlikely that Newdow would succeed on the merits, the Court noted that "[a] review of Newdow's two complaints [for the 2001 and 2005 presidential inaugurals] shows direct parallels in the injury alleged by Newdow" and concluded that "issue preclusion based on Newdow I casts grave doubt on his likelihood of succeeding on the merits in this action." Id. at 273, 276. 7

The Court then turned to the issues raised in Newdow II. Judge Bates, observing that Newdow faced "sizable hurdles on the issue of standing," id. at 276, noted that Newdow "alleged injuries that are not obviously particularized or specific to him," id. at 277. As for redressability, the Court concluded that "the only party against whom an injunction would redress Newdow's injury is President Bush [since h]e has ultimate decision-making power in selecting speakers for the Inauguration, including clergy." Id. at 280 (emphasis added). Indeed, during oral argument, "Newdow conceded that only an injunction against the President can truly redress his injuries." Id. (emphasis added). Judge Bates then noted the "serious separation of powers concerns," id. at 280, raised by Newdow's request for injunctive relief against the President: the Court's grave concerns about its power to issue an injunction against the President, which is the only method of redressing Newdow's alleged injuries, places in peril Newdow's standing to bring this action. Without redressability and therefore standing, Newdow would be unable to succeed on the merits of his claims. Id. at 282. On the merits, Judge Bates explained that, because the contents of the 2005 inaugural prayers were unknown at the time Newdow sought a preliminary injunction, and because the Court only had the contents of the 2001 prayers and "snippets" from some earlier prayers, "there has not been a persuasive showing on the present record that inaugural prayer has been used to affiliate or proselytize under any reasonable definition of these words." Id. at 288-89. Judge Bates similarly observed that "Newdow has not offered a sufficient record to establish . . . a substantial likelihood of success in drawing this case apart from legislative prayer, military chaplains, and other similar acts of ceremonial deism that come within the Marsh exception to general Establishment Clause jurisprudence. Newdow certainly has not done so to the extent necessary for the sweeping relief he seeks here." Id. at 290. And the Court found that "Newdow's remaining claims [regarding the Free

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Exercise Clause and the RFRA] carry little force." Id. at 290. In balancing the harms regarding the requested preliminary injunction, Judge Bates found that Newdow has not demonstrated that the balance of harms here strongly favors the injunctive relief he seeks. Certainly his showing is not sufficient to overcome the marginal showing of a likelihood of success on the merits of his claims. The threat of harm to his rights absent the requested injunction is generalized rather than specific, there is at least some risk of harm to others from entry of an injunction, and in the present circumstances the public interest simply does not favor the extraordinary relief that Newdow seeks. Id. at 291.4 In particular, the Court noted that "each inaugural ceremony is quite personal to the President honored, even down to the choice of clergy participating." Id. at 293. As for the broader public interest, 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. That would be consistent with the inclusion of clergy prayer in all Presidential inaugurations since 1937, and 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 material change requested by Newdow in an accepted and well-established historical pattern of short prayers or religious references during Presidential inaugurations, based on this last-minute challenge, is not likely to serve the public interest, particularly where Newdow's ability to proceed with this action remains in doubt and there is no clear evidence of impermissible sectarian proselytizing. Id. at 293. On these and other bases, Judge Bates denied Newdow's motion for a preliminary

The Court also noted that Newdow did not file his action (and his motion for a preliminary injunction) until December 21, 2004, "just a month before the scheduled date of the 2005 Inauguration." Id. at 292. Accordingly, the Court found that "[t]his delay in seeking a preliminary injunction has placed defendants and the federal courts in a difficult position" and that "Newdow seeks a mandatory preliminary injunction that would alter the status quo by precluding the planned clergy prayers at the Inauguration, and that the preliminary relief he seeks would constitute the ultimate relief in this case." Id. Here, plaintiffs filed their Motion for a Preliminary Injunction on January 5, 2005 -- a mere two weeks before the Inauguration. 9

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injunction. Id. at 294.5 In a subsequent decision, Judge Bates dismissed Newdow's case. Newdow II, 391 F. Supp. 2d 95 (D.D.C. 2005). Echoing the Court's earlier analysis, Judge Bates held that Newdow was precluded from relitigating his standing, id. at 101, and that the complaint must nevertheless be dismissed "because no justiciable case or controversy remains." Id. at 101-02. Building on his previous opinion, Judge Bates held that "Newdow lacks any of the indicia of a personal connection found in other prayer or public-display cases" and, on that basis, found that Newdow failed to allege a concrete injury-in-fact. Id. at 104. Judge Bates reiterated that Newdow's only possible avenue of relief would be against the President -- a party against whom the Court could not issue an injunction or declaratory judgment. Id. at 104-06. Finally, the Court found that Newdow's claim was moot. See id. at 107-08. 3. Plans for the 2009 Inauguration. On January 20, 2009, President-Elect Barack Obama will be sworn in as the 44th President of the United States. See U.S. Const., Amend XX, § 1. Pursuant to a concurrent resolution of Congress, the JCCIC makes logistical arrangements for the Inauguration of President-Elect Obama and Vice President-Elect Biden. See S. Con. Res. 67 (Feb. 28, 2008). Senator Dianne Feinstein serves as Chair of that Committee.6 The Presidential Inaugural Committee ("PIC") is a private organization appointed by the President-Elect that coordinates numerous ceremonial events associated with the Inauguration, including the inaugural parade and inaugural balls. 36 U.S.C. §

Newdow immediately appealed the denial of his motion for a preliminary injunction and sought an injunction pending appeal. The D.C. Circuit denied Newdow's motion. See Newdow II, No. 05-5003, 2005 WL 89011 (D.C. Cir. Jan. 16, 2005).
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More information on the JCCIC can be found at http://inaugural.senate.gov. 10

501; see also Newdow II, 355 F. Supp. 2d at 280.7 The Armed Forces Inaugural Committee ("AFIC") is a joint service committee charged with coordinating ceremonial support for the presidential inaugural. See generally Declaration of Thomas L. Groppel (attached hereto as Ex. 7).8 Major General Richard J. Rowe, Jr. serves as Chair of that Committee. In accordance with longstanding tradition, the Chief Justice of the United States has been invited to administer the presidential oath of office. Rev. Rick Warren has been invited to provide an invocation, and Rev. Joe Lowery has been invited to provide a benediction, at the inauguration. Plaintiffs filed their lawsuit on December 30 and delayed seeking a preliminary injunction until January 5, a mere 15 days before the inauguration. ARGUMENT I. PLAINTIFFS LACK STANDING. The "judicial power of the United States defined by Article III is not an unconditioned authority to determine the constitutionality of legislative or executive acts," but is limited to the resolution of actual "cases" and "controversies." Valley Forge Christian College v. Americans United for Separation of Church & State, 454 U.S. 464, 471 (1982). The doctrine of "standing is an essential and unchanging part of the case-or-controversy requirement of Article III." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).9 To have standing, a plaintiff first "must have suffered an `injury in fact' -- an invasion of

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More information on the PIC can be found at http://www.pic2009.org/content/home. More information on the AFIC can be found at http://www.afic.northcom.mil/about.html.

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"[T]he party invoking federal jurisdiction bears the burden of establishing its existence." Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 104 (1998). Federal courts should presume that they lack jurisdiction "unless the contrary appears affirmatively from the record." Renne v. Geary, 501 U.S. 312, 316 (1991) (citations omitted). 11

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a legally protected interest which is (a) concrete and particularized . . . and (b) actual or imminent, not `conjectural' or `hypothetical.'" Lujan, 504 U.S. at 560 (citations omitted). "Second, there must be a causal connection between the injury and the conduct complained of . . . ." Id. (citations omitted). "Third, it must be `likely,' as opposed to merely `speculative,' that the injury will be `redressed by a favorable decision.'" Id. (citations omitted). The Supreme Court has observed that "[its] standing inquiry has been especially rigorous" in cases such as the one at bar, where "reaching the merits of the dispute would force it to decide [whether] an action taken by one of the other two branches of the Federal Government [was unconstitutional]." Raines v. Byrd, 521 U.S. 811, 819-20 (1997). Plaintiffs cannot satisfy their burden of proving standing because they cannot prove a concrete and particularized injury in fact and because any such injury would not be redressable. A. Plaintiffs Do Not Allege Concrete And Particularized Injuries Sufficient To Qualify As Injuries In Fact.

Plaintiffs' Preliminary Injunction Memorandum fails to describe any injury whatsoever that will befall plaintiffs should the Court not grant their motion. Plaintiffs do assert that they find the challenged conduct to be "offensive" and that it will turn them into "political outsiders." Pl. Mem. at 4 (Dkt. No. 4 at 13); see also id. at 19 (Dkt. No. 4 at 28) (plaintiffs "will be turned into second class citizens" and "will suffer the very injuries our Religion Clauses exist to obviate"). But other than these conclusory snippets, plaintiffs' memorandum is completely silent on the issue of injury. Nor does plaintiffs' Complaint contain any allegations of injury sufficient to confer standing. As an initial matter, plaintiffs have failed to offer any evidence demonstrating injury. Unlike the Complaint in Newdow II, the Complaint here is unverified, and none of the forty-odd named plaintiffs have submitted a declaration in support of plaintiffs' motion. Plaintiffs have therefore

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failed to meet their burden of persuasion to demonstrate an injury in fact that is sufficient to allow this Court to contemplate the "extraordinary remedy" of granting a preliminary injunction. Cobell v. Norton, 391 F.3d 251, 258 (D.C. Cir. 2004) ("A preliminary injunction is an extraordinary remedy that should be granted only when the party seeking the relief, by a clear showing, carries the burden of persuasion."); Local Civ. R. 65.1 ("The application [for a preliminary injunction] shall be supported by all affidavits on which the plaintiff intends to rely."). Plaintiffs would have this Court grant that remedy (and alter a presidential inauguration) based solely on the vague and unsupported allegations of injury contained in their Complaint and naked assertions contained in their motion. Even if these allegations were properly supported by any kind of evidence, they would still be insufficient to demonstrate injury. Plaintiffs assert, for example, that they "have a right to view their government in action without being forced to confront official endorsements of religious dogma" (Compl. ¶ 83), that "[b]eing forced to confront such religious dogma as the price to pay for observing a governmental ceremony is a substantial burden upon Plaintiffs' rights of Free Exercise" (Compl. ¶ 84), that they feel like "`outsiders' due to their personal religious beliefs" (Compl. ¶ 88), and that plaintiffs' "social condition" will be "worsen[ed]" (Compl. ¶ 95). But these generalized assertions of social stigma and hurt feelings do not, by themselves, establish the kind of "concrete and particularized" injury Article III requires. Lujan, 504 U.S. at 560. The "psychological consequence presumably produced by observation of conduct with which one disagrees . . . is not an injury sufficient to confer standing under Article III, even though the disagreement is phrased in constitutional terms." Valley Forge, 454 U.S. at 485-86. In other words, Article III injury "is not measured by the intensity of the litigant's interest or the fervor of his advocacy." Id. at 486; accord Allen v. Wright, 468 U.S. 737, 755-756 (1984) ("abstract stigmatic injury" insufficient by itself to create Article III injury in fact); Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 223 13

n.13 (1974) ("abstract injury in nonobservance of the Constitution" insufficient to confer Article III injury). Judge Kennedy of this Court found that very similar allegations of injury by Mr. Newdow did not confer standing to challenge Congress's practices regarding legislative prayer and its use of chaplains. In Newdow v. Eagen, 309 F. Supp. 2d 29, 34-35 (D.D.C. 2004), appeal dismissed, No. 04-5195, 2004 WL 1701043 (D.C. Cir. July 29, 2004), the Court held that Newdow's alleged injury of being "forced to confront religious dogma he finds offensive" was not a concrete and particularized injury because it consisted merely of emotional harm that has been rejected as a basis for standing under the principles articulated in Valley Forge. The D.C. Circuit also has held that injured feelings alone do not constitute Article III injury. In Kurtz v. Baker, 829 F.2d 1133, 1141 (D.C. Cir. 1987), the Court of Appeals determined that a secular humanist lacked standing to challenge his exclusion from the U.S. House and Senate guest chaplains program. In rejecting plaintiff's theory that the exclusion injured him by stigmatizing secular humanists and atheists, the court noted that "allegations of stigmatic injury will not suffice to link a plaintiff personally to the conduct he challenges unless . . . the plaintiff personally has been denied a benefit." Accord U.S. Catholic Conference v. Baker, 885 F.2d 1020, 1024-25 (2d Cir. 1989) (pro-choice clergy lacked standing to challenge Catholic Church's tax-exempt status based on alleged stigma arising from "`government favoritism to a different theology'"); Americans United for Separation of Church and State v. Reagan, 786 F.2d 194, 201 (3d Cir. 1986) (religious groups lacked standing to challenge adoption of diplomatic relations with the Vatican based on suggestion that such relations would cast their religious views in an adverse light in the religious market). Plaintiffs' generalized feelings of being "outsiders" do not give them standing to challenge inaugural prayers. 14

Moreover, none of the plaintiffs here has a "personal connection" to the presidential inauguration sufficient to confer standing. See Newdow II, 391 F. Supp. 2d 95, 103-04 (D.D.C. 2005) (discussing at length the "personal connection" requirement to establish standing in Establishment Clause cases). Various plaintiffs allege that they will attend the inauguration, watch the inauguration on the National Mall, watch the inauguration on television, or not watch the inauguration at all. See Compl. ¶¶ 8-36. But as Judge Bates noted in Newdow II, none of these circumstances establishes the kind of personal connection sufficient to confer standing: Here, Newdow lacks any of the indicia of a personal connection found in other prayer or public-display cases. Certainly the Presidential Inauguration is a national event, but it is only held once every four years. In order to come into contact with the allegedly offensive prayers, Newdow must either watch it on television or make a special trip to Washington to observe the prayers in person. He can also avoid the prayers by not watching the television, or by not making the trip to Washington. But, under either scenario, he does not have the necessary personal connection to establish standing. Newdow does not come into regular contact with the inaugural prayers, nor is he forced to change his typical routine to avoid them. There is no evidence that he is a frequent or regular attendee or invitee at Presidential Inaugurations. Hence, without a personal connection to the inauguration that would make his injuries particularized and concrete, Newdow's alleged injuries -- general offense and outsider status -- are akin to the psychological injuries occurring from the observation of offensive conduct that the Supreme Court in Valley Forge deemed insufficient to establish an injury-in-fact. Newdow II, 391 F. Supp. 2d at 104 (emphasis added) (internal citation omitted); see also Newdow v. Eagen, 309 F. Supp. 2d at 35 (no personal connection to Senate prayer when making a one-time special trip to observe it). Plaintiffs' anticipated one-time exposure to clergy prayer and the utterance of the phrase "so help me God" at the inauguration (whether viewed in person, on the National Mall, or on television) simply does not qualify as a particularized and concrete injury sufficient to confer standing. Tellingly, we do not even know which of the individual plaintiffs will allegedly be "injured," much less how they will be injured, as none of the approximately 30 individual plaintiffs has alleged 15

any specific injury as to him or herself. In any event, "`where large numbers of Americans suffer alike, the political process, rather than the judicial process, may provide the more appropriate remedy for the widely shared grievance.'" Newdow II, 355 F. Supp. 2d at 277 (quoting FEC v. Atkins, 524 U.S. 11, 23 (1998)); see also Valley Forge, 454 U.S. at 475 ("`abstract questions of wide public significance' which amount to `generalized grievances,' pervasively shared and most appropriately addressed in the representative branches" are inappropriate for judicial determination (quoting Warth v. Seldin, 422 U.S. 490, 499-500 (1975)); United States v. Richardson, 418 U.S. 166, 176-77 (Article III requires a plaintiff to show that he or she is "in danger of suffering [a] particular concrete injury" that is not "undifferentiated and common to all members of the public") (internal quotation marks omitted).10 None of these precedents was disturbed by In re Navy Chaplaincy, 534 F.3d 756 (D.C. Cir. 2008), which plaintiffs cite in a footnote to assert that a plaintiff has standing to bring an Establishment Clause claim whenever they observe, read, or hear a government communication of "a religious message through religious words or religious symbols." Pl. Mem. at 5 n.9 (Dkt. No. 4

Plaintiffs also assert that various "unnamed children" will be injured by the challenged conduct. See Compl. ¶¶ 36, 62, 96, 97, 124, 133; see also Pl. Mem. at 12 (Dkt. 4 at 21). But plaintiffs' attempt to use unidentified "impressionable young children" who are allegedly in their "formative years" (Compl. ¶¶ 62, 97) -- whoever they may be -- to obtain the standing that the adult plaintiffs lack cannot salvage plaintiffs' motion. Plaintiffs do not allege any injury to their children different from the "injuries" that plaintiffs allege will accrue to the children's parents. And to the extent plaintiffs allege that the challenged conduct "amount[s] to the coercive imposition of religious dogma specifically denounced by the Supreme Court," plaintiffs properly concede that all of the cases they cite for this proposition involve public schools. Compl. ¶ 97. As the Supreme Court has observed, however, "there are heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools." Lee v. Weismann, 505 U.S. 577, 592 (1992) (citing cases); see also id. at 590 (Establishment Clause "concerns have particular application in the case of school officials); Part II.A.1.b, infra. No such concerns are present here any more so than when children are present for the opening prayer at the beginning of a session of Congress. 16

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at 14 n.9). To the contrary, in Navy Chaplaincy the D.C. Circuit expressly rejected the plaintiffs' claim of injury from "being subjected to [a] `message' of religious preference conveyed" by the government's actions, reiterating that "mere personal offense to government action does not give rise to standing to sue." In re Navy Chaplaincy, 534 F.3d at 763 (citations omitted). The court stressed at length that to accord standing to anyone who becomes aware of or is offended by an allegedly unconstitutional "message" would "eviscerate well-settled standing limitations." Id. at 764. As explained above, plaintiffs' allegations of psychological harm fail to meet these established standing requirements. Finally, none of the organizational plaintiffs (such as the American Humanist Association or the Freedom From Religion Foundation) alleges any injury at all, or at least no "injury" separate and apart from that alleged by the individual plaintiffs. The Supreme Court has made clear that "an organization's abstract concern with a subject that could be affected by an adjudication does not substitute for the concrete injury required by Art. III." Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 40 (1976). Thus, an organization "must meet the general standing requirements applied to individuals." Nat'l Taxpayers Union v. U.S., 68 F.3d 1428, 1433 (D.C. Cir. 1995). For the reasons set forth above, none of the allegations of the Complaint meets these general standing requirements. And for these same reasons, none of the plaintiff organizations has standing as a representative of its members, as none of its members has standing to sue in his or her own right. See id. at 1435. B. Plaintiffs Lack Standing Because Their Claims for Relief Are Not Redressable.

Plaintiffs also lack standing because they cannot prove that the injury they allege can be

17

"`redressed by a favorable decision.'" Lujan, 504 U.S. at 560 (internal citations omitted). 1. Plaintiffs' Alleged "Inaugural Prayer" Injury Is Not Redressable.

In Newdow II, Newdow sued many of the same defendants as those here. By Newdow's own concession, however, none of the defendants named in this case can provide relief as to inaugural prayers. In Newdow II, Mr. Newdow contended, and Judge Bates concurred, that although Newdow "brought this action against several defendants . . . the President himself has the exclusive decisionmaking authority as to whether there will be religious prayer at an inauguration." Newdow v. Bush, 391 F. Supp. 2d 104 (emphasis added). Plaintiffs' failure to name as a defendant the one individual with exclusive decision-making authority as to the format of the Presidential Inauguration (President-Elect Obama)11 is not surprising, as Judge Bates held that the Court was without authority to grant an injunction or declaratory relief against the President of the United States. Newdow II, 391 F. Supp. 2d at 106. Accordingly, adding the President-Elect as a defendant would be futile, because district courts do not have the authority to issue equitable relief against the President-Elect. See Franklin v. Massachusetts, 505 U.S. 788, 802-03 (1992) (plurality opinion) ("[I]n general, `this court has no jurisdiction of a bill to enjoin the President in performance of his official duties.'" (quoting Mississippi v. Johnson, 71 U.S. 475, 501 (1866)); Swan v. Clinton, 100 F.3d 973, 978 (D.C. Cir. 1996) (noting that the Supreme Court has "issued a stern admonition that injunctive relief against the President personally is an extraordinary measure"); Newdow II, 391 F. Supp. 2d at 104-07.12

Judge Bates rejected the suggestion that the Court could enjoin the Presidential Inaugural Committee instead of the President. Newdow II, 391 F. Supp. 2d at 104-05. This Court need not address the precise question of whether these separation-of-powers concerns apply with equal force to the President-Elect (as opposed to the President), since plaintiffs 18
12

11

Plaintiffs face the same justiciability problems with Senator Feinstein and the JCCIC, as the same principles outlined in Newdow II prevent the Court from enjoining these defendants for their roles in the inaugural program. See Mississippi v. Johnson, 71 U.S. at 500 ("The Congress is the legislative department of the government; the President is the executive department. Neither can be restrained in its action by the judicial department."); Franklin v. Massachusetts, 505 U.S. 788, 829 (1992) (Scalia, J., concurring) (noting that a court may no more "direct . . . the Congress to perform particular legislative duties" than it may order the President to take specific official acts); Hearst v. Black, 87 F.2d 68, 72 (D.C. Cir. 1936) (refusing to enjoin acts taken in performance of Congress's discretion). In Newdow I the Magistrate Judge recognized this principle and concluded that the court lacked jurisdiction to grant injunctive or declaratory relief against the Congress (or the President) regarding what may be said by the President or his speakers at a presidential inauguration.13 An injunction against either Major General Richard J. Rowe, Jr. or the Armed Forces Inaugural Committee also would fail to redress plaintiffs' alleged injury in this case. Neither Major General Rowe nor AFIC has any control over the clergy who provide the prayers, nor do they provide any support in particular for the clergy to deliver prayers during the inauguration. See Groppel Decl. ¶¶ 6-9. Moreover, they do not have any role in the administration of the oath of

have not named President-Elect Obama as a defendant. Of course, to the extent that separation-ofpowers concerns are any less applicable to the President-Elect, that would be because he is still a private citizen and, as such, is not a state actor subject to the Establishment Clause. See December 28, 2001 Findings and Recommendations at 4-7 (finding no jurisdiction to enjoin the President); March 26, 2002 Findings and Recommendations at 4-8 (denying Newdow's Motion to Amend Complaint to add Senator McConnell, as chairperson of the JCCIC, because courts cannot enjoin Congress). Although the Magistrate Judge phrased his decision in terms of jurisdiction, he also correctly phrased it in terms of standing as well. To say that a court lacks jurisdiction to enjoin the President or Congress in a particular respect is also to say that a party's request for such relief is not "redressable." Lujan, 504 U.S. at 560. 19
13

office. See Groppel Decl. ¶ 10. Accordingly, an injunction against either of these defendants would not prevent recitation of prayer that the President-Elect desires at his inauguration. 2. Plaintiffs' Alleged "Oath of Office" Injury Is Not Redressable.

An injunction against the Chief Justice would fail to redress plaintiffs' alleged injury regarding the administration of the oath of office. Plaintiffs concede that President-Elect Obama has the right to affirm his oath with the concluding phrase "so help me God" when he is sworn in to office. See Compl. ¶ 107. Before the commencement of this litigation, the Chief Justice instructed his Counselor to contact the President-Elect's transition team to ascertain the manner in which the President-Elect would like the presidential oath to be administered, specifically soliciting the President-Elect's wishes regarding the inclusion of the traditional phrase "so help me God." See Declaration of Jeffrey P. Minear (attached hereto as Ex. 8). President-Elect Obama has advised the Chief Justice that he wishes, upon taking his oath, to conclude his swearing-in with the affirmation, "so help me God." Id. And the Chief Justice intends to administer the oath of office to the President-Elect in accordance with the President-Elect's wishes regarding the phrase, "so help me God." Id. Accordingly, an injunction against the Chief Justice serves only to interfere with the President-Elect's desires regarding his inaugural ceremonies. Such an injunction against the Chief Justice raises a separate redressability issue. As plaintiffs' Complaint and motion make clear, nothing in the Constitution or the laws of the United States requires the Chief Justice to administer the presidential oath of office.14 Thus, if this Court

For example, President Washington's first oath was administered by Robert Livingston, Chancellor of the State of New York; President Washington's second oath was administered by William Cushing, Associate Justice of the Supreme Court; President Tyler's oath was administered by William Cranch, Chief Justice of the U.S. Circuit Court; President Arthur's first oath was administered by John R. Brady, Justice of the New York State Supreme Court; President Theodore 20

14

were to issue an injunction against the Chief Justice (the relief plaintiffs have requested in their motion and proposed order), the President-Elect could merely exercise his prerogative to invite someone else to administer an oath that is followed by the phrase "so help me God." Thus, once again, the only person capable of providing the relief that plaintiffs seek is the President-Elect himself, as it is his decision whether to include the phrase "so help me God" in his oath and can select whomever he wishes to administer that oath (and whomever he selects would not be bound by a specific injunction against the Chief Justice). But plaintiffs have not named the President-Elect as a defendant, and any attempt to do so would be futile, as any such relief against the PresidentElect would be improper for the reasons already stated. See Newdow II, 391 F. Supp. 2d at 106. II. PLAINTIFFS ARE NOT ENTITLED TO A PRELIMINARY INJUNCTION. Even if the Court were to find that plaintiffs have standing, they are not entitled to injunctive relief. A grant of preliminary injunctive relief under Rule 65(a) "is considered an extraordinary remedy in this circuit." Sociedad Anonima Vina Santa Rita v. U.S. Dep't of Treasury, 193 F. Supp. 2d 6, 13 (D.D.C. 2001) (citations omitted). Because preliminary injunctive relief is "a drastic and unusual judicial measure," see Marine Transp. Lines v. Lehman, 623 F. Supp. 330, 334 (D.D.C. 1985), the power to issue such an injunction should be `sparingly exercised,'" see Dorfmann v. Boozer, 414 F.2d 1168, 1173 (D.C. Cir. 1969) (citations omitted). To prevail in a request for a preliminary injunction, a plaintiff bears the burden of

Roosevelt's first oath was administered by John R. Hazel, U.S. District Judge for the Western District of New York; President Coolidge's first oath was administered by John C. Coolidge, his father, a Notary Public; and President Johnson's first oath was administered by Sarah T. Hughes, U.S. District Judge for the Northern District of Texas. See The Architect of the Capitol, Presidential Oaths of Office, http://www.aoc.gov/aoc/inaugural/pres_list.cfm?renderforpring-1 (last visited Jan. 6, 2008). 21

demonstrating that: (1) there is a substantial likelihood of success on the merits; (2) failure to grant the injunction would result in irreparable injury; (3) the requested injunction would not substantially injure other interested parties; and (4) the public interest would be furthered by the injunction. Katz v. Georgetown Univ., 246 F.3d 685, 687-88 (D.C. Cir. 2001) (citation omitted); Nat'l Head Start Ass'n v. Dep't of Health & Human Servs., 297 F. Supp. 2d 242, 246-47 (D.D.C. 2004). Although these factors are balanced against each other, "it is especially important for the movant to demonstrate a likelihood of success on the merits." Nat'l Head Start Ass'n, 297 F. Supp. 2d at 247. Further, in a case such as this, where "the injunction sought would alter, rather than preserve, the status quo," the plaintiff must meet an even higher standard: he must demonstrate "a clear entitlement to relief" or that "extreme or very serious damage will result if the injunction does not issue." Qualls v. Rumsfeld, 357 F. Supp. 2d 274, 279 (D.D.C. 2005). As demonstrated below, Plaintiffs fail to carry that burden here. A. Plaintiffs Fail to Demonstrate a Substantial Likelihood of Success on the Merits. 1. Plaintiffs' Establishment Clause Challenge to Inaugural Prayer Is Foreclosed by the Supreme Court's decision in Marsh v. Chambers and this Court's decision in Newdow II.

In Marsh v. Chambers, 463 U.S. 783 (1983), the Supreme Court rejected an Establishment Clause challenge to the Nebraska state legislature's practice of beginning each of its sessions with a prayer offered by a chaplain paid out of public funds, observing that "[t]he opening of sessions of legislative and other deliberative public bodies with prayer is deeply embedded in the history and tradition of this country." Id. at 786. As demonstrated below, the tradition of inaugural prayer is just as "deeply embedded" in our Nation's history and is closely analogous to such opening legislative prayers; there is no persuasive reason to distinguish it from the legislative prayers upheld in Marsh. 22

Indeed, in weighing a nearly identical challenge to inaugural prayer four years ago, Judge Bates applied Marsh to conclude that Plaintiff Newdow was unlikely to succeed on the merits. See Newdow II, 355 F. Supp. 2d at 289. a. Marsh Forecloses Plaintiffs' Challenge To Inaugural Prayer. (1) Our Nation's Tradition of Legislative and Inaugural Prayer Dates Back to the Founding.

As the Court observed in Marsh, "From colonial times through the founding of the Republic and ever since, the practice of legislative prayer has coexisted with the principles of disestablishment and religious freedom." Id. at 786. Thus, the Court explained, "the Continental Congress, beginning in 1774, adopted the traditional procedure of opening its sessions with a prayer offered by a paid chaplain." Id. at 787. Later, "the First Congress, as one of its early items of business, adopted the policy of selecting a chaplain to open each session with prayer," id. at 787-88, and a "statute providing for the payment of these chaplains was enacted into law on Sept. 22, 1789." Id. at 788 (citation omitted). Just three days later, the Court noted, "final agreement was reached on the language of the Bill of Rights." Id. (citation omitted). In view of this history, the Supreme Court concluded that "[c]learly the men who wrote the First Amendment Religion Clause did not view paid legislative chaplains and opening prayers as a violation of that Amendment." Id. at 788 (footnote omitted). The Court explained: "It can hardly be thought that in the same week Members of the First Congress voted to appoint and to pay a Chaplain for each House and also voted to approve the draft of the First Amendment for submission to the States, they intended the Establishment Clause of the Amendment to forbid what they had just declared acceptable." Id. at 790; see also id. at 788 (noting that the practice of legislative prayer

23

begun by the First Congress has "continued without interruption ever since that early session of Congress"). Marsh thus established that "[t]o invoke Divine guidance on a public body entrusted with making the laws is not, in these circumstances, an `establishment of religion,' but a tolerable acknowledgment of beliefs widely held among the people of this country." Id. at 792. In upholding the legislative prayers at issue in Marsh, the Supreme Court did not draw any distinction between legislative prayer and prayer (and other references to God) by the Executive or Judicial Branches. To the contrary, the Court phrased its holding and rationale in broad terms that could equally apply to all three branches. See id. at 786 (noting that "[t]he opening of sessions of legislative and other deliberative public bodies with prayer is deeply embedded in the history and tradition of this country") (emphasis added); id. at 792 (noting that "[t]o invoke Divine guidance on a public body entrusted with making the laws" is not an establishment of religion) (emphasis added). The Supreme Court also supported its holding in Marsh by referring to historical examples of ceremonial references to God by the Judicial and Executive Branches. For example, the Court noted that "[i]n the very courtrooms in which the United States District Judge and later three Circuit Judges heard and decided this case, the proceedings opened with an announcement that concluded, `God save the United States and this Honorable Court,'" and that "[t]he same invocation occurs at all sessions of this Court," id. at 786 -- a practice that originated in the days of Chief Justice Marshall, see Engel v. Vitale, 370 U.S. 421, 446 (1962) (Stewart, J., dissenting). Likewise, on the same day that final agreement was reached on the language of the Bill of Rights, "the House [of Representatives] resolved to request the President to set aside a Thanksgiving Day to acknowledge `the many signal favors of Almighty God.'" 463 U.S. at 790 n.9 (emphasis added). These references demonstrate that the Supreme Court in Marsh did not intend to draw any distinctions between the

24

legislative, judicial, and executive branches with respect to the permissibility of ceremonial prayer and references to God. Plaintiffs attempt to distinguish clergy-led inaugural prayers from the chaplain-led legislative prayers approved in Marsh on the theory that inaugural prayers do not have the same "unambiguous and unbroken history of more than 200 years" to justify them, asserting that the current practice of inviting clergy to say an Inaugural prayer originated in 1937, with the second Inauguration of President Franklin D. Roosevelt. Pl. Mem. at 15 (Dkt. No. 4 at 24); see Compl. ¶¶ 90-91. Plaintiffs' reading of the historical record is fundamentally mistaken. Inaugural prayer, like legislative prayer, originated at the Founding and has continued to this day. Shortly after President Washington was sworn in in 1789, in accordance with resolutions passed by the Senate and House of Representatives, see S. Epstein, Rethinking the Constitutionality of Ceremonial Deism, 96 Colum. L. Rev. 2083, 2106 (1996) (quoting 1 Joseph Gales, The Debates and Proceedings in the Congress of the United States 25 (1834)), he and members of the Senate and House walked to St. Paul's Chapel, where Bishop Samuel Provost, Chaplain of the Senate, read prayers from the Book of Common Prayer. See id. at 2107 (footnote omitted). As with legislative prayer, it is simply inconceivable that the members of the First Congress, who drafted the Establishment Clause, thought it to prohibit presidential inaugural prayer, having also passed resolutions creating the very practice. See Marsh, 463 U.S. at 790 (the Supreme Court has recognized that actions of the First Congress are "contemporaneous and weighty evidence" of the Constitution's "true meaning") (citation omitted); see also United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 328 (1936) (construction "placed upon the Constitution . . . by the men who were contemporary with its formation" is "almost conclusive") (citation omitted).

25

From 1793 to 1937, the Senate chaplain delivered the inaugural prayers in the Senate chambers as part of the administration of the oath of office to the Vice-President. See Epstein, 96 Colum. L. Rev. at 2174 n.137. See also M. Medhurst, "God Bless the President": The Rhetoric of Inaugural Prayer 76 (1980) (unpublished Ph.D. dissertation) (attached hereto as Ex. 9) (noting that the Inauguration of the Vice-President was held separately, and before, the Inauguration of the President during those years so the Vice-President could "act in his role as President of the Senate and thus . . . preside over the Senate on inauguration day"). Since 1937, the Vice President-Elect has taken his oath of office during the same Inauguration ceremony as the President-Elect. See Medhurst, supra, at 76-77. In addition to prayer by clergy, the longstanding practice of inaugural prayer also includes prayer by Presidents themselves. George Washington, after swearing his oath of office on a Bible, offered the following prayer in his first inaugural address: "It would be peculiarly improper to omit in this first official act my fervent supplications to that Almighty Being who rules over the universe, who presides in the councils of nations, and whose providential aids can supply every human defect, that His benediction may consecrate to the liberties and happiness of the people of the United States a Government instituted by themselves for these essential purposes." Inaugural Addresses of the Presidents of the United States, S. Doc. 101-10, p. 2 (1989) (attached hereto as Ex. 10). Thomas Jefferson offered the following prayer in his first inaugural address: "[M]ay that Infinite Power which rules the destinies of the universe lead our councils to what is best, and give them a favorable issue for your peace and prosperity." Id. at 17. Likewise, James Madison, who was the principal drafter of the Bill of Rights, see Everson, 330 U.S. at 13; id. at 523 (Jackson, J., dissenting), offered a similar prayer in his first inaugural address, where he invoked "the guardianship and guidance of

26

that Almighty Being whose power regulates the destiny of nations, whose blessings have been so conspicuously dispensed to this rising Republic, and to whom we are bound to address our devout gratitude for the past, as well as our fervent supplications and best hopes for the future." Inaugural Addresses of the Presidents of the United States, supra, at 28. Thus, even if there were no evidence of inaugural prayer by clergy, the fact that Presidents themselves have said such prayers since our Nation's earliest days supports the constitutionality of inviting clergy to recite prayer in their stead. If it is constitutional for the President to say a prayer at his inauguration, as Presidents Washington, Jefferson, Madison and others have done -- and which plaintiffs do not appear to dispute -- it is illogical conclude to that the President may not request a clergy member to say a prayer on his behalf. In sum, as Judge Bates recognized in Newdow II, to prevail on the merits, plaintiffs would have to overcome the burden of demonstrating that "a House and Senate resolution at the first inauguration requiring a clergy-led inaugural prayer at a church; a practice of clergy-led inaugural prayer inside the Capitol from 1793 to 1933; a practice of clergy-led inaugural prayer outside the Capitol from 1937 to 2001; and frequent mentions of God, benedictions, and at least one prayer in the Presidential addresses themselves, taken together, do not establish a tradition of inaugural prayer that is sufficiently `embedded in the history and tradition of this country' to fall within . . . Marsh." 355 F. Supp. 2d at 288. Once again, Plaintiffs fail to meet this burden. (2) Inaugural Prayer Cannot Reasonably Be Understood To Proselytize.

Marsh and Newdow II also refute Plaintiffs' contention that clergy-led inaugural prayers violate the Establishment Clause to the extent that they might incorporate monotheistic terminology

27

or beliefs. See Pl. Mem. at 11-13; Compl. ¶¶ 90-95. In approving legislative prayer in Marsh, the Supreme Court rejected the argument that the Nebraska legislature had violated the Establishment Clause by selecting a Presbyterian chaplain whose prayers were in the "Judeo-Christian tradition," declaring: "We cannot, any more than Members of the Congresses of this century, perceive any suggestion that choosing a clergy man of one denomination advances the beliefs of a particular church." 463 U.S. at 793. The Marsh Court stressed that "[t]he content of [otherwise permissible ceremonial] prayer is not of concern to judges where, as here, there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief." Id. at 794-95; see also Turner v. City Council, 534 F.3d 352, 356 (4th Cir. 2008) ("So long as the prayer is not used to advance a particular religion or to disparage another faith or belief, courts ought not to `parse the content of a particular prayer.'") (quoting Marsh, 463 U.S. at 795). For the same reasons, Plaintiffs' request for an injunction barring "the clergy-led offering of an invocation, a benediction, or any other religious activity" at the inauguration ceremony must be rejected. Pl. Proposed Order at 2; see also Compl. ¶¶ IV, V (requesting injunction forbidding "overtly Christian religious acts," or, indeed, "any religious acts" whatsoever).15 As Marsh recognized, where a prayer constitutionally may be said in connection with an official government ceremony, the speaker must necessarily be allowed some leeway to pray within his or her own faith. See Marsh, 465 U.S. at 791-92 (approving practice of legislative prayer even though the prayers had Even if the Court were to examine the content of previous inaugural prayers, including Rev. Graham's January 20, 2001 prayer, it could readily conclude that such prayers have contained the same kinds of general entreaties for the well-being of the Nation and the President and Vice President that inaugural prayers have routinely included since the nation's earliest days. See Epstein, 96 Colum. L. Rev. at 2109 (quoting Inaugural prayers offered by Presidents Washington, Jefferson, and Madison); id. at 2174 n.8 (quoting Inaugural prayers offered by various clergy members). Such prayers also closely resemble the kinds of legislative prayers that have been offered by paid legislative chaplains since the beginning of the Republic. See id. at 2174 nn. 117-118. 28
15

come from the "Judeo-Christian tradition"); cf. Hobbie v. Unemployment Appeals Comm'n of Florida, 480 U.S. 136, 144-145 (1987) (noting that "the government may (and sometimes must) accommodate religious practices and that it may do so without violating the Establishment Clause") (footnote omitted). To hold otherwise would effectively require the oxymoron of an entirely religious prayer, or else to require the courts to prescribe the form and content of permissible ceremonial prayers, which the First Amendment would certainly not allow. See, e.g., Lee v. Weisman, 505 U.S. 577, 588 (1992) (a government may not direct or control content of prayers at public events). Moreover, as the en banc Tenth Circuit has correctly observed, "all prayers `advance' a particular faith or belief in one way or another" in the sense that "the act of praying to a supreme power assumes the existence of that supreme power." Snyder v. Murray City Corp., 159 F.3d 1227, 1234 n.10 (10th Cir. 1998) (en banc). Nevertheless, Marsh undoubtably permits reference to "a particular concept of God" -- in that case, the Judeo-Christian God -- that is not universally shared. See id.16 What Marsh forbids is "proselytization" -- that is, "aggressive" efforts to "convert citizens to particular sectarian views." Id. Here, there is no basis to conclude that, in the context of the broader inaugural ceremony, the clergy members' 2009 prayers could constitute impermissible proselytizing. The record before the Court contains nothing more than snippets of various prayers delivered at previous inaugurations, see Compl. App. B, and as in Newdow II, the sole basis of Plaintiffs' objection appears to be that some of those prayers were specifically Christian in nature. Cf. Newdow II, 355 F. Supp. 2d at 289. However, even if the 2009 prayers do invoke Judeo-Christian faith, as explained above, Marsh

16

Perhaps FN re content of prayer in Marsh. 29

establishes that such references are permissible. The Establishment Clause simply does not require the "extirp[ation] from public ceremonies [of] all vestiges of the religious acknowledgments that have been customary at civic affairs in this country since well before the founding of the Republic." Chaudhuri v. Tennessee, 130 F.3d 232, 236-37 (6th Cir. 1997), cert. denied, 523 U.S. 1024 (1998).17 b. Marsh, Not Lee v. Weisman or Santa Fe, Controls This Case.

Plaintiffs argue that this case is controlled not by Marsh, but by the Supreme Court's decisions in Lee v. Weisman, 505 U.S. 577 (1992), and Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000), which invalidated coercive, state-controlled prayer in the public school context. Plaintiffs also maintain that those decisions "raise substantial doubts as to whether or not Marsh remains good law." Pl. Mem. at 13. Both contentions are seriously mistaken. As an initial matter, the coercion analysis applied in Lee and Santa Fe is properly confined to the public school context, and thus has no application here. In Lee, for example, which invalidated a policy permitting prayer at public secondary school graduation ceremonies, the Court emphasized that an objecting student's "attendance and participation in the state-sponsored religious activity are in a fair and real sense obligatory" given the significance of the event and the coercive pressures on schoolchildren. 505 U.S. at 586, 588; see also id. at 596 (finding the graduation setting "analogous to the classroom setting, where . . . the risk of compulsion is especially high"). Likewise, in Santa Fe, which struck down a policy permitting student-led prayer at high school football games, the Court stressed the "immense social pressure" that pushes schoolchildren to conform, especially in matters of social convention. 530 U.S. at 311. Thus, as the Tenth Circuit recently recognized,

Accord Tanford v. Brand, 104 F.3d 982, 985 (7th Cir. 1997) (upholding, under Marsh, invocation and benediction at public university graduation ceremony). 30

17

"[s]ocial pressure to particip