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March 24, 2004.

JAMES M. EAGEN, III, et al., Defendants

The opinion of the court was delivered by: HENRY KENNEDY, District Judge


Plaintiff, the Rev. Dr. Michael A. Newdow ("Newdow"), brings this action to challenge Congress's practices regarding legislative prayer and chaplains under the First Amendment Establishment Clause, the Supremacy Clause of Article VI, Clause 2 of the U.S. Constitution, and the Religious Test Clause of Article VI, Clause 3 of the U.S. Constitution. Newdow brings this action against the United States, the United States Congress, several administrative officers of the United States Congress, and the chaplains of the House of Representatives and the Senate. Presently before this court are the United States' motion to dismiss the amended complaint [#21], the House Defendants' motion to dismiss the amended complaint [#22], and the Senate Defendants' motion to dismiss the amended complaint [#23]. Upon consideration of defendants' motions, the oppositions thereto, and the record of this case, the court concludes that defendants' motions to dismiss the amended complaint must be granted.


  Newdow is a minister ordained by the Universal Life Church and the founder of the First Page 2 Amendmist Church of True Science. Am. Compl. ¶¶ 82-83. Newdow claims to be an atheist who "absolutely denies the existence of any Supreme Being." Id. at 84.

  Each House of Congress has a chaplain elected by its members. The chaplains, and their staffs, receive a federal salary. 2 U.S.C. § 61d; 2 U.S.C. § 84-2. Throughout history, the House and Senate chaplains have been theists.

  Newdow claims he has been injured or will be injured by Congress's chaplaincy practice in four ways. First, Newdow claims that defendants' actions impair his right to observe government without being forced to "confront religious dogma he finds offensive." Am. Compl. ¶ 81. Second, Newdow alleges that he is injured because he applied for the position of legislative chaplain of both the Senate and the House, but was not seriously considered and was denied the position because of his religious beliefs. Third, Newdow alleges that he has suffered personal reproach as a result of Senate Chaplain Dr. Lloyd Ogilvie's prayer on June 27, 2002. Newdow asserts that Dr. Ogilvie's prayer was in direct response to the outcome of other litigation Newdow brought to challenge the federal Pledge of Allegiance statute and the recitation in public schools of the Pledge, which contains the words "under God." Newdow v. U.S. Congress, 292 F.3d 597, 608 (9th Cir. 2002) (holding that the Pledge of Allegiance statute and a school district's policy of teacher-led recitation of the Pledge constituted an unconstitutional establishment of religion). Finally, Newdow claims that he has been injured as a taxpayer because his tax monies are used in part to fund the chaplains' salaries.

  Newdow seeks declaratory and injunctive relief. Newdow seeks a declaration that: (1) Page 3 offering legislative prayer violates the Establishment Clause of the First Amendment*fn1, (2) the practice of having legislative chaplains who are theists violates the Religious Test Clause of Article VI, Clause 3*fn2, (3) statements in the prayers of legislative chaplains regarding God violate the oath or affirmation each chaplain has taken pursuant to Article VI, Clause 3, and (4) the chaplains' espousement of "the idea that allegiance to God supersedes allegiance to the Constitution," Am. Compl. at 20, violates the Supremacy Clause of Article VI, Clause 2.*fn3

  Newdow also asks this court to recognize that Marsh v. Chambers, 463 U.S. 783 (1983), which upheld the practice of legislative prayer, has been overruled in light of more recent Supreme Court pronouncements. Furthermore, Newdow seeks to enjoin the congressional chaplain defendants from espousing particular religious dogma and to enjoin the congressional officer defendants from making further salary disbursements to the congressional chaplains.

  Defendants move to dismiss on the grounds that Newdow does not have standing to prosecute this action of standing and has failed to state a claim upon which relief can be granted.


 A. Legal Standard Page 4

  A motion to dismiss is appropriate "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Martin v. Ezeagu, 816 F. Supp. 20, 23 (D.D.C. 1993) (internal quotation marks omitted); see Conley v. Gibson, 355 U.S. 41, 45-46 (1957) (stating that a complaint should not be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief). In addition, the court must "construe the complaint in the light most favorable to [the] plaintiff and must accept as true all reasonable factual inferences drawn from well-pleaded factual allegations." In re United Mine Workers of Am. Employee Benefit Plans Litig., 854 F. Supp. 914, 915 (D.D.C. 1994); see Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979) (stating that the court must give the plaintiff "the benefit of all inferences that can be derived from the facts alleged").

 B. Standing

  The party invoking federal jurisdiction bears the burden of demonstrating standing. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). To establish standing under Article III, a plaintiff must establish the following: (1) that the plaintiff suffered an "injury in fact;" (2) that the injury is "fairly . . . trace[able] to the challenged action of the defendant;" and (3) that the injury will "likely" be "redressed by a favorable decision." Id. at 560-61 (1992) (citations and internal quotation marks omitted); see also Animal Legal Defense Fund, Inc. v. Glickman, 154 F.3d 426 (D.C. Cir. 1998) (en ...

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