MICHAEL ARTHUR NEWDOW, ET AL., APPELLANTS v. JOHN G. ROBERTS, JR., CHIEF JUSTICE OF THE U.S. SUPREME COURT, ET AL., APPELLEES
No. 09-5126
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Decided May 7, 2010
Argued December 15, 2009
Michael Newdow argued the cause for appellants. With him on the briefs was Robert V. Ritter.
Lowell V. Sturgill Jr., Attorney, U.S. Department of Justice, argued the cause for appellees John G. Roberts, Jr., et al. With him on the brief was Mark B. Stern, Attorney. Brad P. Rosenberg, Attorney, entered an appearance.
Dominic F. Perella argued the cause for appellees Presidential Inaugural Committee and Emmett Beliveau. With him on the brief were Craig A. Hoover, Catherine E.
H. Robert Showers and Kevin T. Snider were on the brief for appellees Joseph Lowery and Richard Warren.
James Matthew Henderson, Sr. was on the brief for amicus curiae American Center for Law & Justice in support of appellees.
Greg Abbott, Attorney General, James C. Ho, Solicitor General, C. Andrew Weber, First Assistant Attorney General, Adam W. Aston, Assistant Solicitor General, David S. Morales, Deputy Attorney General for Civil Litigation, Candice N. Hance, Assistant Attorney General, Attorney General‘s Office of the State of Texas, Troy King, Attorney General, Attorney General‘s Office of the State of Alabama, Daniel S. Sullivan, Attorney General, Attorney General‘s Office of the State of Alaska, Terry Goddard, Attorney General, Attorney General‘s Office of the State of Arizona, Dustin McDaniel, Attorney General, Attorney General‘s Office of the State of Arkansas, Edmund G. Brown, Jr., Attorney General, Attorney General‘s Office of the State of California, John W. Suthers, Attorney General, Attorney General‘s Office of the State of Colorado, Richard Blumenthal, Attorney General, Attorney General‘s Office of the State of Connecticut, Joseph R. Biden, III, Attorney General, Attorney General‘s Office of the State of Delaware, Bill McCollum, Attorney General, Attorney General‘s Office of the State of Florida, Thurbert E. Baker, Attorney General, Attorney General‘s Office of the State of Georgia, Mark J. Bennett, Attorney General, Attorney General‘s Office of the State of Hawaii, Lawrence G. Wasden, Attorney General, Attorney General‘s Office of the State of Idaho, Lisa Madigan, Attorney General, Attorney General‘s Office of the State of Illinois, Gregory F. Zoeller, Attorney General, Attorney General‘s Office of the State of Indiana,
Before: GINSBURG, BROWN, and KAVANAUGH, Circuit Judges.
Opinion for the Court filed by Circuit Judge BROWN.
Opinion concurring in the judgment filed by Circuit Judge KAVANAUGH.
BROWN, Circuit Judge: Plaintiffs appeal the dismissal of their constitutional challenge to religious elements of the presidential inaugural ceremony. We affirm the dismissal because plaintiffs’ claims regarding the 2009 inaugural ceremony are moot and plaintiffs lack standing to challenge the 2013 and 2017 inaugurations.
Barack Obama was elected President of the United States on November 4, 2008. Prior to and following his election, organizations were formed to assist preparations for the January 20, 2009 ceremony that would mark his inauguration. The then President-elect created a private coordinating group, the Presidential Inaugural Committee (“PIC“), recognized by statute as “the committee appointed by the President-elect to be in charge of the Presidential inaugural ceremony and functions and activities connected with the ceremony.”
Through the PIC, President Obama invited two private ministers—Revs. Rick Warren and Joseph Lowery—to lead invocation and benediction prayers, respectively, at the inaugural ceremony. President Obama also communicated his wish to John Roberts, Jr., Chief Justice of the United States,1 that the Chief Justice administer the presidential oath of office at the ceremony and append the phrase “So help me God” to conclude the oath. See Declaration of Jeffrey P.
While these preparations were ongoing, plaintiffs were also preparing themselves to attend or view President Obama‘s inauguration. Plaintiffs—who individually describe themselves as atheist, see, e.g., App. for Appellants at 125, nonreligious and nontheistic, see, e.g., id. at 126, Secularist, see, e.g., id. at 128, or humanist, see, e.g., id. at 136—were hoping President Obama would eschew the prayers and the “So help me God” phrase that have become traditional elements of the inaugural ceremony. However, upon learning these elements were scheduled to be part of the ceremony, plaintiffs sought declaratory and injunctive relief in the district court that would bar those elements for the 2009 as well as for future inaugurations as violations of the First and Fifth Amendments, and in particular the Establishment Clause of the First Amendment. See Complaint at 1, Newdow, Civil Action No. 08-02248 (D.D.C. Dec. 29, 2008). The complaint represented the third Establishment Clause lawsuit the lead plaintiff, Michael Newdow, has brought before federal courts against religious elements of presidential inaugural ceremonies.2 Plaintiffs also moved for a preliminary injunction six days after filing their initial complaint.
The district court, after a hearing, denied plaintiffs’ preliminary injunction motion and ordered them to show cause
Upon consideration of all parties’ responses to the show cause orders, the district court dismissed the complaint. It found plaintiffs lacked standing to challenge the 2009 inaugural ceremony and that Newdow was precluded from challenging the inaugural prayers. See Order at 3, Newdow, Civil Action No. 08-02248 (Mar. 12, 2009). While the district court did not consider plaintiffs’ amended complaint, it noted that the same standing issues afflicting the original complaint and the original plaintiffs would also afflict the new complaint and the new plaintiffs. See id. at 2 n.1.
Plaintiffs appealed to this court under
II
The parties present three issues on appeal. The first is whether the lead plaintiff, Newdow, is precluded by the findings of prior cases from challenging inaugural prayers.
A
Plaintiffs argue that despite prior cases in which Newdow was found to have lacked standing to challenge inaugural prayers, he is not precluded from challenging those prayers now because changes in circumstances and in the relevant law have cured or made obsolete the standing issues on which those prior challenges failed. Plaintiffs further argue that issue preclusion need not be considered because Newdow is not the only plaintiff in this case and if any of the other plaintiffs has standing, then the status of Newdow‘s standing is irrelevant. See Carey v. Population Servs. Int‘l, 431 U.S. 678, 682 (1977) (explaining that once one plaintiff has standing, there is “no occasion to decide the standing of the other [plaintiffs]“).
We agree with plaintiffs’ second argument, and therefore do not address the first. The question of preclusion with regard to Newdow is superfluous amidst other plaintiffs in the case whose standing has not been passed upon in prior cases. We put aside the issue of preclusion and move to the more relevant questions of mootness and standing.
B
The federal defendants and the PIC argue that plaintiffs’ challenge to the religious elements of the 2009 inaugural ceremony is moot. The brief for the federal defendants—joined in full by the PIC in its brief, see Br. for the PIC at 14—reasons that with the 2009 inauguration having already occurred and the prayers and the oath already spoken, the court is not in the practical or constitutional position to
This argument rings true. It is a basic constitutional requirement that a dispute before a federal court be “an actual controversy... extant at all stages of review, [and] not merely at the time the complaint is filed.” Steffel v. Thompson, 415 U.S. 452, 459 n.10 (1974). This rule assures that “federal courts are presented with disputes they are capable of resolving,” U.S. Parole Comm‘n v. Geraghty, 445 U.S. 388, 397 (1980), and not mere opportunities to engage in spirited sophistry. Whether the 2009 ceremony‘s incorporation of the religious oath and prayers was constitutional may be an important question to plaintiffs, but it is not a live controversy that can avail itself of the judicial powers of the federal courts. It is therefore moot.
At oral argument, plaintiffs conceded their claims regarding the 2009 inauguration would be moot under basic mootness doctrine. See Tr. of Oral Argument at 6, 27, 52. However, they contend their challenge is saved by an exception to mootness for cases that are capable of repetition but evade review. Reply Br. for Appellants at 3-9. The first prong of that exception requires that resolution of an otherwise moot case must have “a reasonable chance of affecting the parties’ future relations.” Clarke v. United States, 915 F.2d 699, 703 (D.C. Cir. 1990). The second prong requires that “the challenged action [be] in its duration too short to be fully litigated prior to its cessation or expiration.” Weinstein v. Bradford, 423 U.S. 147, 149 (1975).
Plaintiffs cannot lay claim to this exception. Even if we assume plaintiffs’ challenge is capable of repetition, they are barred from asserting it evaded review because plaintiffs failed to appeal the district court‘s denial of their preliminary injunction motion. Had plaintiffs pursued an appeal of that denial and had the preliminary injunction been granted, their case would not have become moot. This circuit—along with every other circuit to have considered the issue—has held that
We note that Armstrong‘s language applies its rule to stays and does not specifically discuss preliminary injunctions or appeals from denials of preliminary injunctions. Plaintiffs seize on Armstrong‘s silence regarding appeals from denials and suggest it means they fall under the exception. Reply Br. for Appellants at 8-9. That suggestion is incorrect. It is clear the principle of Armstrong requires a plaintiff to make a full attempt to prevent his case from becoming moot, an obligation that includes filing for preliminary injunctions and appealing denials of preliminary injunctions. See Minn. Humane Soc‘y v. Clark, 184 F.3d 795, 797 (8th Cir. 1999) (applying the rule to numerous avenues of preliminary relief, including appeals). First, the difference between stays and injunctions is of no moment. “Both can have the practical effect of preventing some action before the legality of that action has been conclusively determined,” with the difference being that a stay “operates upon [a] judicial proceeding itself” while an injunction acts upon a “party‘s conduct.” Nken v. Holder, 129 S. Ct. 1749, 1757-58 (2009). We see no reason why this distinction is relevant to the reasoning of Armstrong. Second, it is not logical to construe Armstrong‘s principle as stopping short of requiring plaintiffs to pursue appeals of denials of injunctive relief. “[T]he capable-of-repetition doctrine applies only in exceptional situations,” City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983), and the Armstrong rule ensures only situations that truly evade review in an exceptional way fall under the doctrine‘s umbrella. The capable-of-repetition doctrine is not meant to save mooted cases that may have remained live but for the neglect of the plaintiff. We therefore find the exception inapplicable in this
C
We turn to the question of plaintiffs’ standing to challenge the 2013 and 2017 inaugurations.3 Standing is determined under the familiar test established in Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992), which states a plaintiff must: 1) have suffered an injury in fact; 2) that is fairly traceable to the challenged action of the defendant; and 3) that will likely be redressed by a favorable decision. Id. at 560-61. The absence of any one of these three elements defeats standing. Id. at 561.
Plaintiffs do not claim President Obama‘s recitation of “So help me God” at the conclusion of his oath injured them. See Br. for Appellants at 38. The President cannot be denied
First, plaintiffs request relief with regard to unnamed defendants over whom this court has no jurisdiction. Plaintiffs’ amended complaint targets “Other Unknown Oath Administrators,” “Other PIC Defendants,” and “Other Unnamed Clergy” whom the President or President-elect4 may ask in the future to conduct and facilitate religious oaths and prayers at the 2013 and 2017 inaugurations. First Amended Complaint at 21-22, 24, Newdow, Civil Action No. 08-02248
The second redressability problem is that declaratory and injunctive relief against the defendants actually named would not prevent the claimed injury. Plaintiffs have sued the
Therefore, issuing an injunction to prevent them from implementing the future President‘s inaugural plan would be folly, akin to enjoining a sound technician from turning the Chief Justice‘s microphone on when administering the oath. The defendants, like the sound technician, are not responsible for the offending conduct and the future President could simply find other willing assistants not subject to the injunction to carry out his wishes. In other words, he could find someone else to turn the microphone on. The future President is therefore a “third party not before the court” whose “independent action” results in the alleged injury, Lujan, 504 U.S. at 560, and courts cannot “redress injury... that results from [such] independent action,” Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41-42 (1976).6
Declaratory relief against the named defendants will also not provide redress since a declaration with regard to defendants’ conduct will have no controlling force on the President or President-elect. Plaintiffs dispute this, arguing that the possibility the future President will choose to abide by a declaratory judgment establishes the appropriate level of redressability to confer standing. For this proposition, they cite two cases, both of which are inapplicable to this case.
First, plaintiffs cite language in Clinton v. City of New York, 524 U.S. 417 (1998), stating that “traceability and redressability are easily satisfied [when] injury is traceable to the President‘s [actions] and would be redressed by a declaratory judgment that the [actions] are invalid.” Id. at 433 n.22. We put aside the fact that plaintiffs in that case (unlike
The second case plaintiffs cite is Franklin v. Massachusetts, 505 U.S. 788 (1992), which contains language endorsing the idea that declaratory relief against an officer subordinate to the President—in that case, the Secretary of Commerce—made it “substantially likely that the President... would abide by an authoritative interpretation” of the relevant law “even though [he] would not be directly bound by such a determination.” Id. at 803. This citation is unpersuasive. First, that portion of the opinion did not garner the support of a majority of the Supreme Court and is therefore not controlling on this court. See Id. at 789-90 (listing only three Justices joining Part III of Justice O‘Connor‘s opinion containing its standing discussion); see also id. at 825 (Scalia, J., concurring in part and concurring in the judgment) (“Redressability
The only apparent avenue of redress for plaintiffs’ claimed injuries would be injunctive or declaratory relief against all possible President-elects and the President himself. But such relief is unavailable. Beyond the fact that plaintiffs fail to name future President-elects or the President in their suit, plaintiffs cannot sue all possible President-elects for the same reason they cannot sue all possible inaugural participants; as discussed, general injunctions are outside the judicial power. With regard to the President, courts do not have jurisdiction to enjoin him, see Mississippi, 71 U.S. (4 Wall.) at 501, and have never submitted the President to declaratory relief, see Franklin, 505 U.S. at 827-28 (Scalia, J.,
III
Plaintiffs’ claims regarding the 2009 inaugural ceremony are moot and plaintiffs do not have standing to bring their claims pertaining to the 2013 and 2017 ceremonies because their injury is not redressable by this court. The district court‘s dismissal of their case is therefore
Affirmed.
Under the Supreme Court‘s precedents, plaintiffs have standing to raise an Establishment Clause challenge to the Inaugural prayers and to the inclusion of the words “so help me God” in the official Presidential oath administered at the public Inauguration ceremonies. I would reject plaintiffs’ claims on the merits because those longstanding practices do not violate the Establishment Clause as it has been interpreted by the Supreme Court.
I
The Government initially argues that plaintiffs lack standing to challenge the Presidential oath and Inaugural prayers. I disagree. Under the relevant Supreme Court precedents, plaintiffs have demonstrated injury-in-fact, causation, and redressability, the three components of standing.
A
To show injury-in-fact, plaintiffs must allege an injury that is concrete and particularized. Plaintiffs are atheists. They claim that they will attend the next Presidential Inauguration and witness the Presidential oath and Inaugural prayers—government-sponsored religious expression to which they object. Those allegations suffice under the Supreme Court‘s precedents to demonstrate plaintiffs’ concrete and particularized injury.
An alleged Establishment Clause injury is sufficiently concrete and particularized when the plaintiff sees or hears a government-sponsored religious display or speech that offends his or her beliefs. See In re Navy Chaplaincy, 534 F.3d 756, 764 (D.C. Cir. 2008). The Supreme Court has consistently decided Establishment Clause cases involving
It is true that the Court did not pause to expressly address standing in those religious display and speech decisions. And “cases in which jurisdiction is assumed sub silentio are not binding authority for the proposition that jurisdiction exists.” In re Navy Chaplaincy, 534 F.3d at 764 (internal quotation marks omitted). But the Supreme Court‘s consistent adjudication of religious display and speech cases over a span
To satisfy the injury-in-fact requirement when challenging a future event, plaintiffs also must show that the alleged injury is “imminent.” That inquiry mirrors the test for constitutional ripeness. See Nat‘l Treasury Employees Union v. United States, 101 F.3d 1423, 1427-28 (D.C. Cir. 1996); see, e.g., MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 128 & n.8 (2007). To demonstrate imminence, plaintiffs must allege an injury that is “substantially probable.” Stilwell v. Office of Thrift Supervision, 569 F.3d 514, 518 (D.C. Cir. 2009). In this case, it is substantially probable that the Presidential oath at the next Inauguration will include “so help me God” and that there will be prayers during the Inaugural ceremony. History, tradition, and common sense tell us as much. As explained more fully below, both “so help me God” and Inaugural prayers have long been staples of Inaugural ceremonies, and there is no reason to think those practices will cease soon.
Imminence is not defeated by the fact that the next Inauguration remains a few years away. In Lee v. Weisman, the Supreme Court decided a challenge to prayer at a high school graduation that loomed in the distant future. 505 U.S. 577, 584 (1992). As that case exemplifies, imminence
B
As to the causation and redressability elements of standing, plaintiffs’ alleged injury is fairly traceable to the defendants here — namely, the officer who recites the official Presidential oath (the Chief Justice) and the entity that runs the events and organizes the speakers (the Presidential Inaugural Committee). See, e.g., Lee, 505 U.S. at 586 (permitting Establishment Clause suit against officials who “direct the performance of a formal religious exercise“). An injunction against the named defendants is therefore also likely to redress plaintiffs’ alleged injuries. See Dynalantic Corp. v. Dep‘t of Defense, 115 F.3d 1012, 1017 (D.C. Cir. 1997) (“Typically, redressability and traceability overlap as two sides of a causation coin.“).2
Because plaintiffs have standing, I turn to the merits of plaintiffs’ Establishment Clause claims.
II
The
In analyzing the Establishment Clause issues in this case, I begin with several background principles.
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 government-sponsored 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.
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
B
With that background in mind, I turn to the Establishment Clause analysis of the Presidential oath and Inaugural prayers. To begin, the Supreme Court‘s Establishment Clause jurisprudence does not set forth a one-size-fits-all test. See Salazar, No. 08-472, slip op. at 18 (opinion of Kennedy, J.); Van Orden v. Perry, 545 U.S. 677, 686 (2005) (plurality opinion); Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687, 718 (1994) (O‘Connor, J., concurring in part and concurring in judgment). Rather, the Court ordinarily analyzes cases under various issue-specific rules and standards it has devised.
This case concerns government-sponsored religious speech at public events outside of the public school setting. The Supreme Court‘s landmark ruling in Marsh v. Chambers, 463 U.S. 783 (1983), sets forth the Court‘s approach to that issue. In Marsh, the Court upheld a state legislature‘s practice
The Court‘s religious display cases have followed an approach similar to the speech cases. See Salazar, No. 08-472; Van Orden,
As to the permissible content of the legislative prayers, the Marsh Court articulated a somewhat ambiguous standard: “The content of the 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. That being so, it is not for us to embark on a sensitive evaluation or to parse the content of a particular prayer.” Id. at 794-95.
The Supreme Court‘s holding in Marsh — allowing government-sponsored religious speech or prayer at a public event where prayers have traditionally occurred, at least so long as the prayers are not proselytizing (seeking to convert) or otherwise exploitative — does not satisfy all Americans. No holding on this issue would in our pluralistic society. But the precedent has endured, and as a lower court we must follow and apply it in this case.
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. See 1 ANNALS OF CONG. 928-29 (Sept. 17, 1789) (Joseph Gales ed., 1789) (final congressional approval of statute requiring oath for judges); id. at 948 (Sept. 24, 1789) (final congressional approval of First Amendment); see also
The words “so help me God” remain to this day a part of oaths prescribed by law at the federal and state levels. See, e.g.,
In light of that extensive historical record and the non-proselytizing, non-exploitative nature of the oath, it comes as no surprise that the Supreme Court several times has suggested, at least in dicta, that the Constitution permits “so help me God” in officially prescribed oaths of office. See Sch. Dist. of Abington Township v. Schempp, 374 U.S. 203, 212-13 (1963) (that “religion has been closely identified with our history and government . . . . is evidenced today in our public life through the continuance in our oaths of office from the Presidency to the Alderman of the final supplication, ‘So help me God‘“); Zorach v. Clauson, 343 U.S. 306, 312-13 (1952) (it is “common sense” that the First Amendment “does not say that in every and all respects there shall be a separation of Church and State” as evidenced by the inclusion of “so help me God” in our courtroom oaths“). Many Justices have reiterated the point in separate opinions over the years. See McCreary County v. ACLU, 545 U.S. 844, 886 (2005) (Scalia, J., dissenting); Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 26 (2004) (Rehnquist, C.J., concurring
Under Marsh and other Supreme Court precedents, the Establishment Clause permits “so help me God” in the official Presidential oath.
D
Plaintiffs’ challenge to the traditional Inaugural prayers (usually consisting of an invocation and benediction) also fails. Those prayers closely resemble the legislative prayers upheld by the Supreme Court in Marsh.
Like legislative prayers, prayers at Presidential Inaugural ceremonies are deeply rooted in American history and tradition. See County of Allegheny v. ACLU, 492 U.S. 573, 671-72 n.9 (1989) (Kennedy, J., concurring in judgment in part and dissenting in part) (“our Presidential inaugurations have traditionally opened with a request for divine blessing“). Indeed, formal prayers “have been associated with presidential inaugurations since the inauguration of George Washington.” Steven B. Epstein, Rethinking the Constitutionality of Ceremonial Deism, 96 COLUM. L. REV. 2083, 2106 (1996). During the first Inauguration, the new President, Vice President, and Members of Congress — in accordance with a resolution passed by the First Congress — “proceeded to St. Paul‘s Chapel, where divine service was performed” by the Senate chaplain. 1 ANNALS OF CONG. 29 (Joseph Gales ed., 1789); see also Epstein, Ceremonial Deism, 96 COLUM. L. REV. at 2106-07. “It is to be noted that this was not a service provided by an Episcopal church to which senators and representatives were invited, but an official service carefully arranged for by both houses of Congress and conducted by their duly elected chaplain.” 1
To be sure, unlike Marsh, this case involves the Executive, not the Legislature. But there is no persuasive reason why opening every “executive session” with prayer would raise more of an Establishment Clause problem than opening every “legislative session” with prayer.
Having established that Inaugural prayers are permissible in concept, we confront a distinct and delicate question regarding the precise content of the prayers. Recall that Marsh stated that “[t]he content of the 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. That being so, it is not for us to embark on a sensitive evaluation or to parse the content of a particular prayer.” Marsh, 463 U.S. at 794-95.
Under Marsh, we know that proselytizing prayers — that is, those that seek to convert — are problematic. Inaugural prayers traditionally have not crossed that boundary.
But what about sectarian references — that is, prayers associated only with particular faiths, or references to deities, persons, precepts, or words associated only with particular faiths? (References such as God and Lord are generally considered non-sectarian for these purposes.) Does a sectarian reference mean for purposes of Marsh that the “prayer opportunity has been exploited to proselytize or
Marsh indicates, however, that the Establishment Clause does not ban any and all sectarian references in prayers at public ceremonies. Some of the prayers at issue in Marsh itself were Christian, and others were in the Judeo-Christian tradition. See Van Orden, 545 U.S. at 688 n.8 (plurality opinion) (noting that “prayers [in Marsh] were often explicitly Christian“).
In the wake of Marsh, moreover, our en banc Court upheld the practice of Congressional prayers, which then (as now) sometimes included sectarian references. See Murray v. Buchanan, 720 F.2d 689 (D.C. Cir. 1983) (en banc) (per curiam). The Fourth, Tenth, and Eleventh Circuits have similarly concluded that Marsh does not prohibit any and all sectarian references. See Pelphrey v. Cobb County, 547 F.3d 1263, 1271-72 (11th Cir. 2008); Simpson v. Chesterfield County Bd. of Supervisors, 404 F.3d 276, 281-82 n.3 (4th Cir. 2005); Snyder v. Murray City Corp., 159 F.3d 1227, 1234 (10th Cir. 1998) (en banc); see also Doe v. Tangipahoa Parish Sch. Bd., 473 F.3d 188, 211 (5th Cir. 2006) (opinion of Clement, J.). But see Wynne v. Town of Great Falls, 376 F.3d 292, 298-99 (4th Cir. 2004).5
III
In an emergency motion filed before the oral argument in this case, plaintiffs moved that we dispense with the Court‘s invocation, “God save the United States and this honorable Court.” According to plaintiffs, that traditional invocation is unconstitutional. We denied the motion, and I take this opportunity to explain my vote.
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
In light of the relevant Supreme Court precedents, plaintiffs’ challenge to “God save the United States and this honorable Court” is unavailing.
***
Applying Marsh and the other relevant Supreme Court precedents, I would hold that both “so help me God” in the Presidential oath and the prayers at the Presidential Inauguration do not violate the Establishment Clause. I also