Newdow loses again

A federal judge rejected Michael Newdow's attempt to enjoin the President from allowing prayers to be spoken at the inauguration saying, "Is it really in the public interest for the federal courts to step in and enjoin prayer at the president's inauguration?"

Addressing the issues directly, the court opined

In sum, Newdow faces numerous and considerable obstacles to prevailing on his claims. There is a strong argument that his claims are barred by issue preclusion, there is some doubt as to his injury-in-fact and considerable doubt as to redressability, and significant problems confront his claims on the merits as they currently rest.

In a marginal note, the court points out even more difficulties with Newdow's case.

Dancing in the shadows of this case are a range of other issues that did not receive full briefing, but nonetheless counsel additional caution at this stage. There is, for instance, the question whether selection by a President (or, to place the issue in starker relief, the President-Elect) of an unpaid clergyperson to pray at his inaugural ceremony is state or governmental action. Even the defendants cannot agree on the answer to this question: The federal defendants acknowledged at the hearing that there was state action, while the Presidential Inaugural Committee disagreed. As for the question whether PIC itself is a state actor, the Court agrees with the PIC that Newdow has not raised a substantial question as to that issue on the present record, which indicates only that the PIC -- otherwise a privately incorporated and funded organization -- is selected by the President. See West v. Atkins, 487 U.S. 42, 52 & n.10 (1988).

Related to this issue is the distinctive nature of prayer at the direction of the President instead of the Congress. No one seems to doubt, and Newdow does not challenge in this litigation, that a President has the legal right to pray himself at his inauguration. This case therefore poses the issue of the President's free speech rights (if any in this context), and when personal religious choices assume the aura of state endorsement such that they must bend to the Establishment Clause. See Constangy, 947 F.2d at 1151 (noting that a judge wearing a robe and praying from the bench is state action, and that he is "free to recite a personal prayer in the privacy of his home or chambers before he goes on the bench").

Finally, there is the not insignificant problem that plaintiff is seeking a prior restraint of prayer in his motion for a preliminary injunction. Courts are particularly hesitant in issuing that relief, which potentially implicates First Amendment problems itself. See Org. For A Better Austin v. Keefe, 402 U.S. 415 (1971). That uncertainty is compounded, of course, when the prior restraint is of the President's freedom to choose to have certain speech at his Inauguration.

I think it's clear that Newdow is unlikely to prevail on the merits. What I like even more is that the judge seems to be getting at the heart of the issue, as I see it, which is that the Constitution proscribes Congress from passing laws that respect a religion but is silent on the issue of governmental employees or representatives making personal choices with regard to religious behavior or symbolism.

What's equally clear is that Mr. Newdow is not going away. When his suit against the phrase "under God" in the pledge of allegiance was rejected because he lacked standing to plead on his daughter's behalf, he recruited three atheist families to represent to overcome that issue. When his suit against prayer was thrown out in 2001, the judge indicated that he suffered little harm because he watched the inauguration on television. So this time, Newdow purchased tickets to the inauguration.

The man is nothing if not persistent.