A federal appeals court on Friday rejected an effort to strip the word “God” from presidential oaths.
Citing largely technical reasons, a three-member appellate panel ruled that California attorney Michael Newdow and his allies weren’t in a position to legally challenge the oaths. Newdow, an atheist, had hoped to avoid formal invocation of the deity’s name in the 2013 and 2017 inaugurations.
“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,” noted Judge Janice Rogers Brown of the U.S. Circuit Court of Appeals for the District of Columbia. “But such relief is unavailable.”
The appellate court further determined that Newdow’s related challenge to the oath taken by President-elect Barack Obama on Jan. 20, 2009, was moot, since there was nothing that could be done after the fact. (The president took the oath twice, once on the Capitol steps and again at the White House, because Chief Justice John Roberts Jr. and Obama flubbed their lines the first time.)
“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,” Brown stated.
Newdow, who is also an emergency-room physician in Sacramento, Calif., has been challenging religion in the public realm for many years but with little lasting success. Most famously, in 2004, the Supreme Court rejected his claim against the suburban Sacramento Elk Grove Unified School District’s use of the words “under God” in the Pledge of Allegiance.
The court’s 2004 decision, much like the new appellate panel decision, centered on technical rather than substantive constitutional grounds. By a 5-3 margin, the high court determined that Newdow lacked the standing to sue because he didn’t have sole legal custody over his daughter, on whose behalf the suit was brought.
Newdow subsequently sought to remove “In God We Trust” from U.S. currency. A federal judge rejected the effort, reasoning that the phrase simply amounted to a national slogan.
In March, in yet another case brought by Newdow, the 9th U.S. Circuit Court of Appeals upheld the Sacramento-area Rio Linda Union School District’s use of “under God” in the Pledge of Allegiance.
“The pledge is one of allegiance to our republic, not of allegiance to the God or to any religion,” Judge Carlos T. Bea wrote in the March 11 decision. “Furthermore, Congress’ ostensible and predominant purpose when it enacted and amended the pledge over time was patriotic, not religious.”
As have judges in other cases, Bea also questioned Newdow’s standing to bring the lawsuit.
Newdow consistently argues that he is personally harmed by the religious references. His presidential oath lawsuit specifically targeted use of the phrase “so help me God” by the chief justice of the Supreme Court, who delivers the oath to the president-elect.
“For those … watching the inaugural ceremony with their children, this action – by the nation’s highest judicial official – is especially intrusive and harmful,” Newdow argued in his original complaint.
Newdow further noted that the phrase “so help me God” is not included in the version of the presidential oath spelled out in the Constitution. He asserts that the phrase has only been used regularly since the 1930s.
Groups such as the Freedom from Religion Foundation and Atheists United joined Newdow in his Washington lawsuit.
One member of the appellate panel Friday, Judge Brett Kavanaugh, said he would have gone all the way and ruled that the God reference in the inauguration doesn’t violate the First Amendment.