Newdow Fails in Suit Challenging “Under God” in Oath, interesting concurrence from Kavanaugh, J. on Establishment Clause

May 7th, 2010

Michael Newdow filed suit against Chief Justice Roberts, arguing that adding “So Help Me God” to the end of the Inaugural Oath violated the establishment clause. The case was heard before a DC Circuit panel consisting of Judges Ginsburg, Brown, and Kavanaugh. The opinion is here.

Judge Brown found that Newdow lacked standing. However, Judge Kavanaugh found that the Plaintiff lacked standing, but adding “So Help Me God” to the end of the oath did not violate the Establishment Clause. Here are some interesting parts of his opinion, which begins on page 19 of the pdf.

First is an obvious point, but one worth emphasizing. In our constitutional tradition, all citizens are equally American, no matter what God they worship or if they worship no god at all. Plaintiffs are atheists. As atheists, they have no lesser rights or status as Americans or under the United States Constitution than Protestants, Jews, Mormons, Muslims, Hindus, Buddhists, Catholics, or members of any religious group.

Second, in deciding this case, we cannot gloss over or wish away the religious significance of the challenged Inaugural prayers. The fact that religious words are common to many faiths – or are used repeatedly – does not diminish their religious meaning. Neither the numbing effect of repetition nor the brevity of a prayer extinguishes the religious nature of words such as “help me God.”

Third, and relatedly, we cannot resolve this case by discounting the sense of anguish and outrage plaintiffs and some other Americans feel at listening to a governmentsponsored religious prayer. Any effort to tell plaintiffs that “it’s not a big deal” or “it’s de minimis” would be entirely out of bounds, in my judgment. Plaintiffs’ beliefs and sincere objections warrant our respect.

And we get a nice citation to Salazar v. Buono

Fourth, at the same time, we likewise cannot dismiss the desire of others in America to publicly ask for God’s blessing on certain government activities and to publicly seek God’s guidance for certain government officials. Plaintiffs suggest that no one should be upset if government ceremonies were entirely cleansed of religious expression; they argue that such a regime would reflect true government “neutrality” toward religion. Others respond, however, that stripping government ceremonies of any references to God or religious expression would reflect unwarranted hostility to religion and would, in
effect, “establish” atheism. Cf. Salazar v. Buono, No. 08-472, slip op. at 14-15 (U.S. Apr. 28, 2010) (opinion of Kennedy, J.) (“The goal of avoiding governmental endorsement does not require eradication of all religious symbols in the public realm. . . . The Constitution does not oblige government to
avoid any public acknowledgment of religion’s role in society.”); Lee v. Weisman, 505 U.S. 577, 598 (1992) (“A relentless and all-pervasive attempt to exclude religion from every aspect of public life could itself become inconsistent with the Constitution.”).

Kavanaugh compares the addition to the oath to the legislative prayer upheld in Marsh.

Like the legislative prayer in Marsh, the words “so help me God” in the Presidential oath are not proselytizing or otherwise exploitative. Moreover, like the practice of legislative prayer, use of “so help me God” in oaths for government officials is deeply rooted in the Nation’s history and tradition. By many accounts, George Washington said “so help me God” when he took the first Presidential oath in New York on April 30, 1789. The First Congress – the same Congress that drafted and approved the First Amendment – mandated “so help me God” in the oaths of office for federal judges.
Under Marsh and other Supreme Court precedents, the Establishment Clause permits “so help me God” in the official Presidential oath.
It seems that Newdow also filed an emergency motion before oral arguments that the Court refrain from the invocation, “God save the United States and this honorable Court.” Kavanaugh explains why he denied that request:

The traditional prayer before this Court’s sessions (and before the Supreme Court’s sessions) is analogous to “so help me God” in the Presidential oath and to the legislative prayers upheld in Marsh. As with the legislative prayers in Marsh, the use of “God save the United States and this honorable Court” before court sessions does not proselytize or otherwise exploit the prayer opportunity so as to advance any one, or to disparage any other, faith or belief. And this prayer is deeply rooted in American history and tradition. See McCreary County v. ACLU, 545 U.S. 844, 886 (2005) (Scalia, J., dissenting) (prayer used under John Marshall); Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 29 (2003) (Rehnquist, C.J., concurring in judgment) (prayer used in Supreme Court at least since 1827). Therefore, under the Marsh test, the prayer “God save the United States and this honorable Court” before court sessions is constitutionally permissible. Indeed, Marsh itself specifically referenced “God save the United States and this honorable Court” as a quintessential example of a permissible religious reference.