Stupid arguments

I've posted before about Michael Newdow's lawsuit to prevent prayer at the inauguration. What I can't understand is the lame arguments that the government lawyers are using.

The administration is asking the U.S. District Court for the District of Columbia to dismiss the lawsuit, saying the practice is widely accepted and more than 200 years old.

A hearing on the matter is scheduled for 3:30 p.m. EST on Thursday in Washington.

Newdow said that two ministers delivered Christian invocations at Bush's first inaugural ceremony in 2001, and that plans call for a minister to do the same before Bush takes the oath of office again on Jan. 20.

Prayers at presidential inaugurals and legislative sessions go back to 1789, the government said. "There is no reason to reverse course and abandon a widely accepted, noncontroversial aspect of the inaugural ceremony," it said.

What are they teaching in the law schools? Is "we've always done it that way" a legitimate legal argument? (And, yes I know about precedent.) And what's with the "non-controversial" argument? The very fact that Newdow is suing makes it controversial, doesn't it?

Good grief! If this is good argumentation, then what's wrong with, "Hey, we've always had slavery in this country. Why should blacks be freed now?" If the administration lawyers can't do better than this, then why are we still paying their salaries?

What is wrong with this argument? The First Amendment proscribes Congress from making any "law respecting an establishment of religion, or prohibiting the free exercise thereof". No law is being made at the inauguration. It's a simple ceremony. There is no proscription in the Constitution against government officials exercising their freedom of speech to say a prayer nor can the government Constitutionally prohibit them from doing so. To do so would be a direct violation of the spirit and the letter of the Constitution, would it not?

It seems to me that arguing the First Amendment prohibition against prohibiting the free exercise of religion would be eminently more defensible than a lame "tradition" argument that can be easily set aside by the court.

UPDATE: There should be a decision tomorrow. At least the government's lawyers included arguments to precedent as well as the silly ones I reference earlier in this post. Now I suppose the court will have to find some silly reason to reject Newdow's suit, since no one seems to want to argue the Constitutional issues. Previously the Ninth Circuit rejected his suit with the following — [the plaintiff] "a sufficiently concrete and specific injury." What kind of bogus reasoning is that? Settle this thing once and for all. Either follow the Constitution or show the public your true colors and admit that you don't care about the First Amendment.

It's time to stand up for the First Amendment!