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
I. BACKGROUND INFORMATION
Newdow is a minister ordained by the Universal Life Church and the
founder of the First
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
Newdow seeks declaratory and injunctive relief. Newdow seeks a
declaration that: (1)
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 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
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 ...