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)

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______________________________________________________________________________ ________ FILED 1 5 7 8 9 i0 11 12 13 14 Defendant. 15 / 16 17 This action, in which plaintiffis proceeding se, has beenreferred to the pro undersigned pursuant to E.D. Cal. L.R. 72-302(e)(21).This action is proceedingagainst 19 20 21 22 23 24 25 26 defendatt George Bush,President of the UnitedStates, on the complaintfiled FebruaryI, W. 2001. E efendam's motionto dismiss, for failure to state a claimpursuantto Fed. R. Civ. P, 12(b)(6 filed May 2001,is presently pendingbefore the court. OnJune 14, 2001, oral 4, t argume~t washeld. Plaintiffappeared on his own ' behalf. Kristin Doorappearedon behalf of defendaat. Havingconsideredthe argument the record, the undersignedmakes following and the finding., and recommendations. Cal. L.R. 78-230(h). E.D. I1111 FINDINGS AN D ~COMMENDATIONS GEOR W. BUSH, PRESID~T OF THE UNITEI~STATES, IN THE UNITEDSTATESDISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA REV. D] MICHAEL A. NEWDOW, Plaintiff, No. CIV S-01-0218 LKKGGH PS __________________________________________________________________________ ______ ________ ______ ______ ______ ______ ______ ______ ______ ______ ______ ____ LEGAL STANDARD FOR MOTIONTO DISMISS.__ ______ ______ A complaintshouldnot be dismissedunder Rule12(b)(6) unless it appears ____ beyond ~ubt that plaintiff can prove no set of facts in support of its claims whichwould entire plalntif~ ~ relief. NOW, v. Schiedter, 510U.S. 249, 256, 114S. Ct. 798, 803(1994); Inc. Cervante~ CitV..of S~-u.Diego, F.3d 1273, 1274-75 v. 5 (9th Cir. 1993). Dismissalmaybe based 6 7 8 9 10 either on ~aelack of cognizable legal theories or the lack of pleadingsufficient facts to support cognizab!e legal theories. Balistreri v. Paeifiea Police Dep't, 901F.2d696, 699(gth Cir. 1990). i Thecomplaint'sfactual allegations are acceptedas tree..Chureh.pf.Scientolo~,of Califomi~ Flvrm,744F.2d 694 (gth Cir.1984). Thecourt construes the pleading in the light v. mostfavorableto plaintiffaad resolves all doubtsin plaintiff's favor. ParksSchoolof Business, Inc. v. S~mington, F.3d 1480, 1484(9th Cir. 1995). Generalallegations are presumed 51 12 13 14 15 16 17 18 include s~ecifie facts necessaryto supportthe claim. NOW, U.S. at 256, 114S. Ct. at 803, 510 quotin~l~j an v. Defenders Wildlife, 504 U.S. 555, 561, 112S. Ct. 2130, 2137(1992). of Thecourt may disregard allegations contradicted by the complaint'sattached exhibits. Duming Firs$ Bgst0nCorp., 815 F.2d 1265, 1267(9th Cir. 1987); Steekmau Hart v. v. BrewingInc., 143F.3d 1293, 1295(9th Cir.1998). Furthermore, court is not required , the accept as~ueallegations contradictedby judicially noticed facts..Mullis v. UnitedStates / | 'k~, ~ aF~ ~r5~elr3s oththCei~i9p8er7~ turthem ? 8an(~ ~IeThd ~ caYou~.nsiMd2 ~lic ikmv .a~e~f 19 rBee~ordi~tn!lurV"~~18e "2mdglsl 20 21 22 23 24 25 26 Beer Dist~butors, 798 F.2d 1279, 1282(9th Cir. 1986), ~ o.._~n othe____~r groundsby Astoria | Federal S~v/ngsand LoanAss'nv. Solimin_o,501 U.S. 104, I I I S. Ct. 2166(1991). "Thecourt is not requiredto acceptlegal conclusions in the formof factual allegationsif those cast / conclusioOscannot reasonably be drawnfrom the facts alleged." Cleggv. Cult Awareness Network F.3d 752(9th Cir. 1994). Neitherneedthe court accept ur, reasonableinferences, !18 unwarran!ed deductions of fact. See WesternMinin~Councilv. Watt, 643 F.2d 618, 624 (9th Cir. 19812. 2 ________________________________________________________________________________ __ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v~ Kerner, 404 U.S. 519, 520-21, 92 S. Ct. 594, 595-96 (1972). Unless it is clear that arnendmtntcan cure its defects, a pro se litigant is entitled to notice and an opportunity to amend the comp!aint before dismissal. S_~ee Lopezv. Smith., 203 F.3d 1122, 1127-28 (gth Cir.2000) (en bane), No~ll v Carlson, 809 F 2d 1446, 1448 (9th Cir 1987) ANA~A_~Plaintiff L seeks a declaration that defendant President Bush violated the Establish~nent Clause of the First Amendment whenhe permitted the Reverend Franklin Graham to say a p~ayer at the inauguration on January 20, 2001. Plaintiffalso seeks to enjoin the " President]uom repeating this "or engaglngin similar relig ious acts." Ptaintiffdoes not seek to | ~ recover a~y damages. Defendant movesto dismiss nn two grounds. First, defendant argues that plaintiff lacks standing. Second, defendant argues that plaintiffs claim is without merit. However,with ! due respect to the parties, and based on ambiguities in the complaint, the all or nothing approach taken b, ~efendant, and possibly plaintiff, does not square with the case law. It is one issue to determine whether any prayer can be asserted at an inauguration, and quite another to determine whether ~ ~e prayer utilized went over the line in terms of advancingone religion over another. Therefore, the court will break out the two issues for analysis herein. ! Alls AnyPrayer at All A13propria.te Standing ,I ~ , To demonstratestanding, a plaintiff must I) "have suffered an 'injury in fact -an and (b) 'actual invasion I f 1 ail p o 0 a eg y r tected i nterest which ~s a concreteparticularized ""() and imminent!not "eonjeeturai or hypothetical;"'" (2) "there must be a causal connection between ~T~etenor of the complaintis that prayer per se at presidentiai inaugurations violates the Establishment Clause. The court did not understand that plaintiff would approve of a prayer given by gae President himseIf. 3 _____________________________________________________________________________ _____ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 I5 16 17 18 19 20 21 22 23 24 25 26 the injury and the conductcomplained of--the injury has to be 'fairly ...trace...[able] to the challenge d action of the defendant, and not...th[e] result [of] the independentaction of somethird party not before the court; '" and (3) "it must be 'likely' as opposedto merely 'speculative,' that theinjur5will be 'redressed by a favorable decision.'" Lujan v. Defenders of Wildlife, 504 U.S. 555,560. 61, 112 S. Ct. 2130, 2136-2137 (1992). Defendantargues that while it is clear that plaintiffwas offended by the prayer, this falls ;hort of an actual concrete injury sufficient to confer standing, Defendant relies heavily on Valley Forge Christian College v..Ameri~ans United for Separ ~tion of Churchand State, Inc., 454 U.S. 464, 102 S. Ct. 752 (1982), the SupremeCourt held that ,sychological injury alone did not establish standing in an action brought pursuant to the Estab ishment Clause. The Court also identified the proximity of the plaintiffs to the challeng~ cl conductas affecting standing. In particular, the Valley Forge plaintiffs, "Americans United f ~ Separation of Churchand State, Inc...and four of its employees,learned of the conveyat ce [of federally-owned land in Pennsylvania to Valley Forge Christian College] through a news re lease." 454 U.S. at 469, 102 S. Ct. at 756. The SupremeCourt found that the plaintiffs, wholived in Virginia and Maryland, lacked standing to allege violation of the Establishment Clause. Althoughrespondents claim that the Constitution has been violated, they claim nothing else. Theyfail to identify any personal injury suffered by them as a consequenceof the alleged constitutional err or, other than the psychological consequence presumably produced by observation of conduct with which one disagrees. That is not an injury sufficient to confer standing under Art. tII, even thought the disagreement is phrased in constitutional terms. Wesimply cannot see that respondents have alleged an injury of any kind, economicor otherwise, sufficient to confer standing. Respondentscomplain of a transfer of property located in Chester County, PA. The namedplaintiffs reside in Marylandand Virginia; their organizational headquarters are located in Washington, D.C. They learned of the transfer through a news release. Their claim that the Government violated the Establishment Clause does not provide has a special license to roam the country in search of governmentalwrongdoingand to reveal their discoveries in federal court. The federal courts were simply not 4 _______________________________________________________________________________ ___ 1 2 constituted as ombudsmen the general welfare. of 454 U.S.lat 485-86, 102 S. Ct. at 766-767. 3 Nonetheless, whena person alleges that he has avoided, or will avoid, public 4 places or~services on account of an "offensive" religious symbolor statement, the courts have 5 6 fact expc ;ure in ~ Fo_E_q~ is sufficient to confer standing. AmericanJewish Congress v. and 7 Cit~ of][ ;verly Hills, 90 F.3d 379, 382 (9th Cir. 1996) (persons whoavoided public park 8 because c freligious symbolhad standing); Hewitt v./o,r'ner, 9 (same); "D e v. Maison School D.. ist. No. 321,177 F.3d789, 797 (gth Cir. 1999) en ba o d ( 10 (parent la :ked standing to protest school prayer at graduation because she had no students 11 remainln in the school district and did not allege that she wouldattend future graduations.) 12 Defendantasserts that plaintiff's "electronic exposure"in lieu of personai 13 appearante at the inaugural festivities makesall the difference in the standing equation. I4 15 16 importan~,e to wtfieh the public is invited, if not encouraged,to view on television. Defendant I7 aires to n~ ~ authority that one cannot be offended in the First Amendment sense by speech 18 transmitt~ d by electronic meansas opposed to an in-the-place sensory hearing. Moreover, 19 defendan~'s distinction would pose arbitrary and unworkablestandards. Whatwould be the case ira perso attended the inanguration in person, but was located so far awaythat the president was 21 only a sp~ :k on the horizon, and he could only "hear" and "see" the president by meansof an 22 electronic ally transmitted simulcast of the speech imposedon a remote screen and speaker system.'? 3efendant's "in person" standing requirement is unknown the law. "This is because to [First Ar~ endment]speech is often disseminated by print and electronics, rather than by standing in front o~people and talking to them." Finley v. National Endowment the Arts, 100 F.3d for n 2fwe~ d a~tuld Ih~P~ ~ar ta~t2nC~n ~ Pe c22;ethva~r; ;~2isiff2:~ 2 l~ngae; f22 t2~a~" ~2~ 2; ~;2od2e2jtatY2; i2ssrs2 940 F.2d 1561, 1564 (9th Cir. 1991) found th~ : the personal exposure to the religious symbol/statementis unlike the remote after-the- __________________________________________________________________________________ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 I6 17 18 19 20 21 22 23 24 25 26 671,686(9th Cir. 1996) (K.le'mfeld, J. dissenting), maj. opn. reversed on other grounds, 524 569, 118 S.Ct. 2168 (1998). Defendantargues that plaintiff could have turned offhis television in order to avoid beiag subjected to the prayer. However,"[i]n evaluating standing, the SupremeCourt has never re~ ~red that Establishment Clause plaintiffs take affirmative steps to avoid contact with ehaIleng :1 displays or religious exercises." Suhre_v. Hay_wood ,County, 131 F.3d 1083, 1086 (4th Cir. 1987 ). For example, the student plaintiffs in School District ofAbingtun.v. Schempp, 374 U.S. 203. 83 S. Ct. 1560 (1963) whochallenged a school Bible reading, had the option to leave the class~ )om during the reading. They chose not to assume this burden, and the SupremeCourt still foun~[ that they had standing to challenge this practice. Schemp..l~,374 U.S. at 224 n. 9, 83 S. Ct. at 15q 2-73. Accordingly, defendant's argument that plaintiff lacks standing because he could have avoi ~Ied contact with the inauguration by turning offhis television is without merit. | Defendantalso argues that wherea patty seeks injunctive relief, establishing standing !ncludes demonstrating areal and immediatethreat of irreparable injury. Cole v. Oroville ~Jnion High School Dist., 228 F.3d 1092, 1100 (9th Cir. 2000). Defendant argues that / plaintiffdas failed to showthat he is in danger of suffering immediate,irreparable harm. In Cole, the plaintiffs alleged that the Oroville UnionHighSchool District violated t ~eir freedom of speech by refusing to allow plaintiffNiemeyer to give a sectarian, proselyti~ ing valedictory speech and plaintiff Cole to give a sectarian invocation at their graduatio ~. The Ninth Circuit concludedthat the other parties whowere added to the students' lawsuit-- Chris Niemeyer'sbrother, Jason, and various Oroville students, parents, and others--l; teked standing, in part, becausethe likelihood of their being selected to speak at a graduatio or their attending a future graduation where somestudent speaker wouldattempt to offer sect 6an speech or invocation was too speculative to satisfy the injury in fact requirement of Article III. 228 F.3dat 1100. In the instant case, as will be discussed infi'a, the reading of an inaugural prayer is 6 _____________________________________________________________________________ _____ a tradition wtfich occurs every four years. Therefore, the threat of injury is not speculative. That 2 3 4 5 6 7 8 9 10 11 12 13 14 t5 16 17 18 19 20 21 22 23 24 25 26 this inju y (in the view of plaintiff) occurs every four years does not render it any less real immedi~ than the injury suffered by students challenging high school graduation ceremonies on te Establis] anent Clause grounds. Defendant's implicit suggestion that plaintJffmust wait until shortly [ :fore an inauguration to bring his action is not realistic. Defendannext arguesthat plaintiff fails to meetthe third test for standing, i.e. t redressa~ ility. In order to meet this prong, the plaintiff must showthat he would"personally benefit it a tangible wayfrom the court's intervention." Warth v. Seldin, 422 U.S. 490, 508, 95 S. Ct. 21!~7, 2210 (1975). Defendantcontends that plaintiff's request that the court declare that Presiden~ Bush violated the First Amendment would do little satisfacti, more than provide plaintiff with the m of having the court declare that the prayer violated the EstablishmentClause. As discussed above, plaintiff seeks an order prohibiting any prayer from being read at at inauguration. An order prohibiting inaugural prayers wouldpersonally benefit plaintiff. Accordingly,defendant's argumentthat plalntiffhas not met the third test for standing is withou: merit. For the reasons discussed above, the court finds that plaintiffhas standing to bring his Estab ishmentClause claim, at least insofar as plaintiff seeks a total ban on prayer at the President al inauguration. Defendantalso argues that plaintiffdoes not have taxpayer standing to bring this action. However,the court does not reach this problematic issue, see Doe v. Madison SchoolD !st., su_.._~tr~ becauseplaintiffhas standing for the reasons discussed above. Merits Defendantargues that the recitation of a prayer at the inauguration does not violate th~ Establishment Clause of the First Amendment. In Marsh v. Chambers, 463 U.S. 783, 103 S. Ct. 3330 (1983), the SupremeCourt held that the Nebraskalegislature's practice of opening each legislative session with an mvoeafio did not violate the Establishment Clause. The SupremeCourt recognized the h 7 __________________________________________________________________________________ 1 2 3 historical tradition of opening "legislative and other deliberative public bodies" with prayer. 463 U.S. at 7 86, 103 S. Ct. at 3333. The Court observed, "It can hardly be thought that in the same weekth~ Members the First Congress voted to appoint and to pay a chaplain for each House of and a/so voted to approve the draft of the First Amendment submission to the states, they for 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 intended the Estab/is/maent Clause to forbid what they had just declared acceptable." 463 U.S. at 790, 103 S. Ct. at 3335. "This unique history leads us to accept the interpretation of the First Amendn .ent draftsmen whosaw no real threat to the Establishment Clause arising from a 2ractice )fprayer similar to that nowchallenged." 463 U.S. at 791, 103 S. Ct. at 3335. p Formal prayers by Christian ministers have been associated with inaugurations since the aaangttratiun of George Washington.Steven B. Epstein, Rethinking the C0nstitu6onali~ of Ceremonial Deism, 96 Colum. L.Rev. 2083, 2106(1996). Prior to President Washin~ ~n's first inauguration, a Senate committee resolved that "'after the oath shall have been administered to the President, he, attended by the Vice-President, and members the of Senate, a~~d Houseof Representatives, [shall] proceed to St. Paul's Chapel, to hear divine service, t~ , be performed by the chaplain of Congress already appointed.'" Id. "The Senate passed s resolution, ~nd the Housedid likewise, with a minor amendment, day before the W~shingt ~n's inauguration." Id__.~. Immediately after the administration of the oath of office and President Washington's first inaugura/address, the President walked with the members the of House an t Senate to St. Paul's Chapel where the Senate Chaplain read prayers from the Book of Common Prayer. Id._~. "From President Washington's second inauguration in 1793 until President n Marsh, the Court of Appealsfor the Eighth Circuit applied the three part test of Lemon v. Kurtzman,403 U.S. 602, 612-613, 91 S. Ct. 2105, 2111 (1971), in holding that the chaplain~ ~ practice violated the Establishment Clause. 463 U.S. at 786, 103 S. Ct. at 3333. In test. Instead, it focused on the evaiuatin! the case, the SupremeCourt did not apply the Lemon histo~cal significance of legislative prayers. Becausethe facts of the instant ease are so similar to those o :~ this court will also not apply the Lemon'test, and will instead focus on the historical ~igni:ficance ofinangural prayers. 8 _________________________________________________________________________________ _ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Franldin'Roosevelt's second in 1937, the Senate's Chaplain delivered the inaugural prayers in the Senate c~mmbers a part of the administration of the oath of office to the vice president." Id__:. at as 2174 fn.l137. "These prayers ware teclmically not part of the 'inaugural ceremony'of the ! / Preside@which typically took place outside of the Capitol following the Senate proceedings." Id. At'~e~this .. trine, prayers were read during the inauguration ceremony.David M. Sraolin, Cracks i the Mirrored Prison: An Evan~eli~:ai Critique of Secularist Academic Judicial and MythsR !garding the.Relationship of Religion and AmericanPolitics, 29 Loy. L.Rev. I487, I504 (1996). n addition, every President has included reverent references to the deity in his inaugural address ~ the nation. 96 Colum.L. Rev. at 2109. Like prayers openinglegislative sessions, inaugural prayers are a historical tradition. While the prayers have only been "technically" included in the inaugural ceremony since 192 7, they have always been part of the inauguration proceedings. The history of inaugural prayers, ]like the history of legislative prayers, indicates that they werenot viewedas violating the EstabIist~ aent Clanse.~ Clearly, if legislative prayers do not violate the EstablishmentClause, 4either dc inaugural prayers. n Accordingly, defendant's motion should be granted on grounds that prayers per se at the Pr~ ~identiai inauguration do not violate the Establishment Clause. a n Mars_____~h, Supreme the Court also observedthat the plaintiff was an adult, "presumably not readil, susceptible to 'religious indoctrination,'...or peer pressure." 463 U.S. at 792, 103 S.Ct. at 3! ;36. At oral argument,plaintiff in the instant case mentioned possibility of the amendin~his complaint to include his daughter as a plaintiff. The SupremeCourt's holding in Marshwn ~ based on the historical sigrtificance of legislative prayer-not on the age of the plaintiff. I~erefore, allowing plaintiff to amend complaint to include his daughter as a the plaintiffv 'onld not changethe result of the court's recommendation. 4 l~lainliffargues that Marshv. Chambers no longer good law as it has been criticized is in later ca~es. WhileMarshmayhave been distinguished in later eases, it has not been overturneql. Marshis controlling in the instant case as the facts are quite similar in both cases. The Marsli line of authority is thus completely separate from the general-religious-speech-at-a public---~nt authority, e.g., high school graduation, see Cole, su~. While other cases might bring harder interpretive problemsin determining whether a certain function was historical in nature, th~ present case does not. 9 _________________________________________________________________________________ _ i 2 3 4 5 6 7 8 9 10 11 12 13 14 15 B. The Specific Prayer Given Whileit is clear that plaintiff abhors the thought of any inaugural prayer, it is less clear thal he wouldadvocate a back-up argument- that the specific prayer offered at the inaugura ion violated the Establishment Clause. The complaint and opposition to the motion to dismiss re of two minds. At one point, plaintiff asserts that he is a minister of a religion that "specifically denies the existence of God." Paragraph 30. Plaintiffdoes not ask for tailored relief, ra~aer, plaintiffseeks the future exclusion of any clergyman [saying prayers] at the Presidential inauguration. In his opposition to the motionto dismiss, plaintiffasserts at one point (19.35 n.3b): "Plaintiffdenies that any prayer can be 'nonsectarian'..." At hearing, plaintiff initially ~adeit clear that he sought the abolition of an inaugural prayer regardless of its sectarian Ior non-sectarian nature. | On the other hand, the complaint does makereference to the specifics of the prayer given by Rev. Franklin Graham (son of the Rev. Billy Graham),e.g., "By stating the |~ prayer w~ in the nameof the father, and of the son, the Lord Jesus Christ, and of the Holy Spirit, the prayer further excluded theistic non-Christians." Paragraph 15.~ The prayer (attached 16 to thecor ~plaint) also included:'"May this be the beginning of a new dawnfor Americaas we 17 humble o trselves before you and acknowledgeyou alone as our Lord, our Savior and our 18 I Redeeme'." The opposition to the motionto dismiss does stress at times the nature of the 19 20 21 22 23 24 25 26 ~S~ealso: "The prayer showed preference for a particular religious belief. Thus, it a violated tlje Establishment Clause." Paragraph 18. 10 wording ~ ,fthe specific prayer offered at the inauguration. Finally, at heating, plalntiffdid slip back into m attack on the wordsof the prayer itself after he had seemingly, unequivocally asserted t at he was not complaining about the words of the prayer. Defendantdoes not recognize any ambiguities, but treats the issue herein as only being onelof any prayer at all at the inauguration. Thus, there is no argumentmadeby defendant that the s~ecific prayer itself passed Constitutional muster. _________________________________________________________________________________ _ 1 2 3 4 5 6 7 8 9 10 11 12 t3 14 15 16 17 18 19 20 21 22 23 The issue of the specifics of the prayer as it mayor maynot violate the Establisl ment Clause could makea difference. Plaintiffs standing to raise the argument that the specifics of the prayer are in question becomesproblematic as he maybe attempting to argue the rights of third parties, i.e., theistic non-Christians, and he, as an expressed non-theistic person may hay no right to do that. Arizonans for Official English v. Arizona 520 U.S. 43, 64, 117 S.Ct. 1055, 1067 (1997); U.S.Dept. Of Labor v. Triplett, 494 U.S. 715, 730, 110 S.Ct. 1428, 1437 (M~xshall, J. concurring) (1990). Moreover,the prospect of having the Rev. Franklin Graham ~reside as chaplain at future inaugurations is muchmore remote than the prospect of havingI: ayer per se again at the Presidential inauguration. This leads the court to question whether ny relief could be fashioned in this case on the specifics of the prayer issue. This issue poses serious problems for defendant as well in that Marshdoes not stand for he proposition that any and all prayer is acceptable at governmental,historical functiom Cole v. Niemever, su~ 228 F.3d at 1103. Indeed, courts have found difficulty with prayers ot symbolsthat directly reference doctrines or figures in a particular religion or sect. See e.g., the "~ery fractured decision in Countyof Alleghenyv. AmericanCivil Liberties Union, 492 U.S. 573,1598-599, 109 S.Ct. 3103-04 (1989) ('Nativity scene with inscription "Glory to God the Highe~~'' was sectarian); Coles v. Cleveland Boardof Education, 171 F.3d 369, 384 (6th Cir. 1999) (pr~yer used to open Board of Education meetings violated the Establishment Clause part beca~lse of the specific reference to Jesus and the Bible along with the fact that the Board president vas a Christian minister); FreedomFromReligion Foundation, Inc. v. City of Marshfiel ~ 203 F.3d 487, 496 (7th Cir. 2000) (violation of Establishment Clause in having statue of( '.hrist proximate to the highwaywhichgave the message"Christ guide us on our way"); but see Pa aerican Civil Liberties Union v. Capitol Square and Review, 243 F.3d 289 (6th Cir. en which was derived frm the New 241 banc) iOhlo motto- "With God, All Things Are Possible," 25 26 Testament, does not violate the Establishment Clause). i The court is unwilling to finally recommend dismissal of the complaint on the the __________________________________________________________________________________ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 specifics of the prayer at issue given the aboveambiguities, and the fact that the parties have not addresse~this issue. Accordingly, IT IS HEREBY RECOMMENDED the President's that motion to dismiss : ~led May4, 2001, be granted insofar as plaintiffcomplaius about permitting a chaplain (or the PI ~sidant) fi'om makingany prayer at the Presidential inauguration. However,the motion should b~ denied insofar as plaintiffis attacking the specifics of the prayer as a violation of the Establish x~ent Clause. Further proceedings should ensue on this latter issue. These findings and recommendations submitted to the United States District are Judge as~, igned to the ease, pursuant to the provisions of Title 28 U.S.C. 636(b)(1). Within (10) daye after being served with these findings and recommendations,any party mayfile written objectio~ with the court and serve a copy on all parties. Such a documentshould be captioned "Objectit as to Magistrate Judge's Findings and Recommendations." reply to the objeetious Any shall be s~rved and filed within ten (10) days after service of the objections. The parties are ! advised ~at failure to file objections within the specified time maywaive the fight to appeal the District C 9urt's order. Martinezv. Ylst, 951 F.2d 1153 (9th Cir. 1991). DATED: July ~ 2001. UNITED S'I~S GGH:kj:035 newdow.md~ MAGISTRATE JUDGE 12 __________________________________________________________________________________ ndd States District Court for the Eastern District of California July 18, 2001 * * CERTIFICATE OF SERVICE ** United 2:01-CV-00218 Newdow Bush I, the unders igned, hereby certify that I am an employee in the Office the Clerk, U. District Court, Eastern District of California. That on July the attached, addressed to envelope in t delivery rece authorization of 18, 2001, I SERVED a true and correct copy(ies) by placing said copy(ies) in a postage paid envelope 5he person(s) hereinafter listed, by depositing said ie U.S. Mail, by placing said copy(ies) into an inter-office otacle located in the Clerk's office, or, pursuant to prior "by counsel, via facsimile. VC/GGH Science SJ/LKK Micha ~i A Newdow First Amendmist Church P0 Be 233345 Sacr~ mento, CA 95823 Krist in Sudhoff Door Unite d States Attorney 501 ~ Street Suite 10-100 Sacra mento, CA 95814 of True Jack L o Wagner, BY: Clerk ~ Deputy ~ Clerk i

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