Court Nixes Challenge to ‘So Help Me God’ in Oath

(CN) - The D.C. Circuit on Friday dismissed as moot a lawsuit challenging the religious elements of President Obama's inauguration, including the inaugural prayers and the phrase "so help me God" in the presidential oath.

A group of atheists said they skipped President Obama's inauguration after learning that the ceremony would include invocation and benediction prayers by Revs. Rick Warren and Joseph Lowery, and that Supreme Court Chief Justice John Roberts Jr. would refer to God while administering the oath.

They never challenged Obama's recitation of "so help me God," however, because they conceded that barring him from making any religious references would violate his First Amendment rights.

"[I]f it were otherwise," the appeals court wrote, "George Washington could not have begun the tradition by appending 'So help me God' to his own oath" and "Lincoln could not have offered a war-weary nation 'malice toward none' and 'charity for all ... with firmness in the right as God gives us to see the right.'"

The plaintiffs, led by prominent attorney and atheist Michael Newdow, sought an order barring the prayers and the oath administrator's reference to God in the 2009 and future inaugurations, claiming they violated the Constitution's separation of church and state.

The district court dismissed the case for lack of standing, and the federal appeals court agreed, adding that the challenge to the 2009 ceremony was now moot.

The court said it was "impossible" to bar "other unknown oath administrators" and "other unnamed clergy" from making religious references at the 2013 and 2017 inaugurations.

"No amount of discovery will uncover the identities of the unnamed defendants," Judge Janice Rogers Brown wrote.

"[P]laintiffs are essentially seeking a declaration of their rights accompanied by an injunction against the world. There is another name for that type of generally applicable relief: legislation. And that's not within the power of the courts."

The court also took issue with the group's claims against the named defendants, including the Chief Justice Roberts, the Joint Congressional Committee on Inaugural Ceremonies and the Presidential Inaugural Committee.

Judge Brown said these defendants lack the authority to promise ceremonies scrubbed of religious references.

"[W]hile these defendants have had some role in facilitating the injury in the past and may again in the future, they possess no authority -- statutory or otherwise -- to actually decide whether future inaugural ceremonies will contain the offending religious elements," she wrote

In a concurring opinion, Judge Brett Kavanaugh said the disputed references "are not proselytizing or otherwise exploitative," and are "deeply rooted in the nation's history and tradition."

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