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Newdow v. Bush

January 14, 2005


The opinion of the court was delivered by: John D. Bates United States District Judge


This case draws this Court into the murky waters of the law relating to the Establishment Clause of the First Amendment. Plaintiff Michael Newdow, a well-known atheist litigant, challenges the inclusion of prayers by invited clergy -- in the form of an invocation and benediction -- at the upcoming Presidential Inauguration scheduled to occur on January 20, 2005. He seeks a declaratory judgment and preliminary injunction to prohibit a practice that has existed for almost seventy years through invited clergy, and that arguably can be traced back to the Inauguration of President George Washington in 1789.*fn1

Newdow's present challenge poses complex First Amendment questions relating to one of this nation's most significant public events. But in addition to such weighty Establishment Clause questions, the case raises substantial issue preclusion and standing questions that require this Court to proceed cautiously, particularly given Newdow's prior litigation involving the very same subject matter and the present context of a request for expedited consideration of a motion seeking the extraordinary relief of enjoining the President.*fn2 The Court is therefore mindful of the guidance expressed by the Supreme Court just last year in another case brought by Newdow challenging the inclusion of the words"under God" in the Pledge of Allegiance:

The command to guard jealously and exercise rarely our power to make constitutional pronouncements requires strictest adherence when matters of great national significance are at stake. Even in cases concededly within our jurisdiction under Article III, we abide by"a series of rules under which [we have] avoided passing upon a large part of all the constitutional questions pressed upon [us] for decision."

Elk Grove Unified School District v. Newdow, 124 S.Ct. 2301, 2308 (2004) (modifications in original) (quoting Ashwander v. TVA, 297 U.S. 288, 346 (1936) (Brandeis, J., concurring)). Taking careful account of two such rules -- issue preclusion and standing -- as well as Newdow's First Amendment claims, the Court concludes that the extraordinary preliminary injunctive relief Newdow seeks must be denied.*fn3


I. Newdow's Prior Challenge to Inaugural Prayer

A few days after the 2001 Inauguration, Newdow challenged the use of inaugural prayers. See Newdow v. Bush, No. CIV S-01-218 (E.D. Cal.).*fn4 Having watched the Inauguration on television, he contended that the prayer delivered was"a religious act per se" and"was clearly sectarian as well." 2001 Compl. ¶¶ 12-13. Newdow asserted that

[t]he effect of the [clergy's] purely religious words was for Christian Americans to perceive them as an endorsement of their Christianity, and for non-Christian Americans including plaintiff to perceive the Pledge [sic] as a disapproval of their non-Christianity.

Id. ¶ 29. He further alleged that because of such"religious activity," he"was made to feel as an'outsider.'" Id. ¶ 30. Newdow sought both a declaration that President Bush had violated the Establishment Clause by utilizing a clergyman in the 2001 Inauguration, and a permanent injunction barring President Bush"from repeating this or engaging in any similar religious acts." Id. at 7.

In response to President Bush's motion to dismiss, the Magistrate Judge issued findings and recommendations concluding that Newdow had Article III standing to bring his action, but recommending that the action be dismissed to the extent it challenged"permitting a chaplain (or the President) from making any prayer at the Presidential Inauguration." Newdow I (Magistrate Judge, July 17, 2001), at 12. The Magistrate Judge noted the long history of Christian prayers and reverent references at Presidential inaugurations, and concluded that the framers did not view such inaugural prayers as violative of the Establishment Clause. Id. at 8-9. Because the parties had not specifically addressed Newdow's challenge to the content of the prayers at the 2001 Inauguration, the Magistrate Judge recommended against dismissal of that claim. Id. at 10, 12.

After objections from both Newdow and President Bush, the District Court adopted the Magistrate Judge's findings and recommendations in full. Newdow I (District Court, Sept. 28, 2001 Order). Accordingly, although the action was dismissed to the extent it sought to prevent the President or a chaplain from saying a prayer at a future inauguration, the entire case was not dismissed. President Bush then moved to dismiss the remaining claim relating to the specific content of the 2001 Inauguration prayers. The Magistrate Judge then suggested that because courts cannot enjoin the President in the circumstances Newdow presented, the entire case should be dismissed. Newdow I (Magistrate Judge, Dec. 28, 2001), at 13. The Magistrate Judge concluded both that the courts lack constitutional authority to regulate the Presidential inauguration or what the President or his speakers said, and alternatively, that there was no Establishment Clause violation and Newdow did not have standing to challenge the content of future inaugural prayers. Id. at 7, 13.

After Newdow filed objections together with a motion to amend his complaint in order to assert claims against Senator Mitch McConnell (as chair of the Joint Congressional Committee on Inaugural Ceremonies), the Magistrate Judge issued final findings and recommendations suggesting that the motion be denied because the court would lack constitutional authority to regulate Congressional participation in a Presidential inauguration just as it could not regulate what the President or others said at an inauguration. Newdow I (Magistrate Judge, Mar. 26, 2002), at 6. The Magistrate Judge also observed, that suing Senator McConnell did not give Newdow any greater standing to challenge the content of a prayer, and a federal court could not enjoin the President, a senator or any other government official with regard to what was said at a Presidential inauguration. Id. at 6-7. The Magistrate Judge therefore resubmitted his December 28, 2001 findings and recommendations, with supplementation, because adding Senator McConnell or anyone else would not alter the recommendation in favor of dismissal. The District Court adopted the findings and recommendations and dismissed Newdow's case in its entirety. Newdow I (District Court, May 23, 2002 Order), at 2.

The Ninth Circuit affirmed the judgment of the district court dismissing Newdow's action. Newdow v. Bush, 89 Fed. Appx. 624, 2004 WL 334438, at *1 (9th Cir. Feb. 17, 2004). That court characterized Newdow's case as"alleging that the inclusion of clergy-led prayer at a presidential inauguration is unconstitutional in general, and that the prayer offered... at the 2001 Inauguration of President Bush was unconstitutional in particular." Id. After noting that it had jurisdiction and could affirm on any appropriate ground, the court stated the entirety of its ruling:

Newdow lacks standing to bring this action because he does not allege a sufficiently concrete and specific injury. See Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 482-86... (1982). The district court did not abuse its discretion in denying Newdow's motion to file an amended complaint because amendment would be futile. See Schmier v. U.S.Ct. of Appeals for the Ninth Circuit, 279 F.3d 817, 824 (9th Cir. 2002).

Id. Newdow did not seek any further review of the Ninth Circuit's decision.

II. Newdow's Current Challenge

President Bush will be sworn in for his second term as the 43rd President at the January 20, 2005 Inauguration. The Joint Congressional Committee on Inaugural Ceremonies ("JCCIC") has been authorized to make all the necessary arrangements for the inauguration of President Bush and Vice President Cheney. See Senate Concurrent Resolutions 93 and 94, 150 Cong. Rec. S1695 (Feb. 26, 2004), 150 Cong. Rec. H1081-82 (Mar. 16, 2004); S. Con. Res. 2, 109th Cong., reprinted in 151 Cong. Rec. S7 (daily ed. Jan. 4, 2005). The chair of the JCCIC is Senator Trent Lott. President Bush has appointed a private organization, the Presidential Inaugural Committee ("PIC"), to coordinate the ceremonial events connected with the inauguration. See 36 U.S.C. § 501.

On December 16, 2004, Newdow contacted the PIC and was informed that there would be chaplains at the 2005 Inauguration, although he was not told how many or who they would be. See Compl. ¶ 41. Newdow then filed this action and a motion for a preliminary injunction on December 21, 2004, challenging the constitutionality of the use of any member of the clergy (or other invited guests) to deliver prayers at the 2005 Inauguration. See Compl. ¶¶ 35-47. Included as defendants in Newdow's action are President Bush, the JCCIC, Senator Lott, the PIC, and Craig Jenkins, Executive Director of PIC.*fn5

Newdow describes himself as"an atheist, who sincerely believes that there is no such thing as god, or God, or any supernatural force." Id. ¶ 19; see Elk Grove, 124 S.Ct. at 2305-06. He asserts that any acknowledgment of God ridicules, rather than solemnizes, public occasions, Compl. ¶ 20, and alleges that at the 2001 Inauguration, Christian ministers gave sectarian Christian prayers that violated the Establishment Clause, id. ¶¶ 23-25. He contends that witnessing such a religious exercise at the 2001 Inauguration made him"feel like a second class citizen and a'political outsider' on account of his religious beliefs," id. ¶ 26, which infringed upon his fundamental right protected by the Establishment Clause to view government action without having to confront government endorsement of religion, id. ¶ 27. Newdow asserts that"[i]t is presumed that Proposed Clergy's prayers [at the 2005 Inauguration] will make Plaintiff feel like an'outsider' as well." Id. ¶ 57. According to Newdow,

[t]he effect of the purely religious words uttered by [clergy at the 2001 Inauguration] was for Christian Americans to perceive them as an endorsement of their Christianity, and for non-Christian Americans, including plaintiff, to perceive the Pledge [sic] as a disapproval of their non-Christianity. It is presumed that Proposed Clergy's prayers will have the same effect.

Id. ¶ 67.*fn6 Newdow claims"a fundamental constitutional right to observe and participate in the Nation's official ceremonies free from governmental endorsement of religion," and that he has a ticket for and plans to attend the 2005 Inauguration, but desires to avoid being subjected to government-endorsed religious dogma while there. See id. ¶¶ 74-76.

The relief sought in Newdow's complaint includes a declaratory judgment that"utilizing any clergymen (much less an openly Christian minister and an openly Christian pastor) in a presidential inauguration" violates the Establishment and Free Exercise Clauses of the First Amendment and the Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. § 2000bb et seq. Compl. at 16, ¶ I. In addition, Newdow askes this Court to enjoin the defendants (or other government officials)"from utilizing any clergymen to engage in any religious act," or alternatively"from utilizing clergymen to engage in Christian religious acts," at the 2005 Inauguration or future Presidential inaugurations, Id. at 16, ¶¶ II, III.

A briefing schedule on Newdow's motion for a preliminary injunction was proposed by the parties and adopted by the Court. That motion has been fully briefed, and both the federal defendants and PIC have filed motions to dismiss as well. A hearing was held on January 13, 2005.


I. Preliminary Injunction Standard

In order to prevail on his application for a preliminary injunction, Newdow must demonstrate (1) a substantial likelihood of success on the merits; (2) that he will suffer irreparable harm absent the relief requested; (3) that other interested parties will not be harmed if the requested relief is granted; and (4) that the public interest supports granting the requested relief. Cobell v. Norton, 391 F.3d 251, 258 (D.C. Cir. 2004); Katz v. Georgetown Univ., 246 F.3d 685, 687-88 (D.C. Cir. 2001); Taylor v. Resolution Trust Corp., 56 F.3d 1497, 1505-06 (D.C. Cir. 1995); Washington Area Metro. Transit Comm' n v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977). In determining whether to grant urgent relief, the Court must"balance the strengths of the requesting party' s arguments in each of the four required areas." CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 747 (D.C. Cir. 1995)."If the arguments for one factor are particularly strong, an injunction may issue even if the arguments in other areas are rather weak." Id. It is particularly important for Newdow to demonstrate a substantial likelihood of success on the merits; where a plaintiff cannot show a likelihood of success on the merits,"it would take a very strong showing with respect to the other preliminary injunction factors to turn the tide in plaintiff[' s] favor." Davenport v. Int' l Bhd. of Teamsters, AFL-CIO, 166 F.3d 356, 366-67 (D.C. Cir. 1999); Nat' l Head Start Ass' n v. Dep' t Health and Human Serv., 297 F. Supp. 2d 242, 246 (D.D.C. 2004) (factors"must be balanced against each other, but it is especially important for the movant to demonstrate a likelihood of success on the merits").

Because preliminary injunctions are extraordinary forms of judicial relief, courts should grant them sparingly. Sociedad Adonima Vina Santa Rita v. United States Dep' t of the Treasury, 193 F. Supp. 2d 6, 13 (D.D.C. 2001); see Dorfmann v. Boozer, 414 F.2d 1168, 1173 (D.C. Cir. 1969). The Supreme Court has stated that"' [i]t frequently is observed that a preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.'" Mazurek v. Armstrong, 520 U.S. 968, 972 (1997); accord Cobell, 391 F.3d at 258.

II. Likelihood of Success

A. Issue Preclusion

At the outset, the Court must consider several arguments raised by defendants that pertain to whether it is appropriate for Newdow to bring this suit. The first of these argument is issue preclusion. Defendants argue that Newdow is precluded from bringing this suit because he previously brought essentially the same cause of action against President Bush in a suit that the Ninth Circuit, in Newdow I, dismissed for a lack of standing because Newdow had not alleged a concrete and particularized injury. If issue preclusion is likely to bar Newdow's current suit, then he cannot show a substantial likelihood of success on the merits.

1. Legal Standard

Under the doctrine of issue preclusion,"once a court has decided an issue of fact or law necessary to its judgment, that decision may preclude relitigation of the issue in a suit on a different cause of action involving a party to the first case." Allen v. McCurry, 449 U.S. 90, 94 (1980); see also Yamaha Corp. of Am. v. United States, 961 F.2d 245, 254 (D.C. Cir. 1992). The purpose of the doctrine is judicial finality. See id. The preclusive effect of a prior ruling is established if: first, the same issue now being raised was"contested by the parties and submitted for judicial determination in the prior case"; second, the issue was"actually and necessarily determined by a court of competent jurisdiction in that prior case"; and third, preclusion does not"work a basic unfairness to the party bound by the first determination." Id. The prior adjudication has preclusive effect even if it is erroneous. See Cutler v. Hayes, 818 F.2d 879, 888 (D.C. Cir. 1987).

2. Newdow I

The first prong of issue preclusion requires review of the actual issues of fact or law litigated in the prior suit and a determination whether resolution of any of those issues would preclude the current litigation. See Yamaha Corp., 961 F.2d at 254. In his first action, Newdow alleged that the prayer given at the 2001 Inauguration, which Newdow witnessed on television, was a violation of the Establishment Clause. 2001 Compl. ¶ 12-13. He requested that the court declare that President Bush violated the Establishment Clause and enjoin him from repeating that violation. Id. at 7. President Bush challenged Newdow's standing to bring such a suit.

The Magistrate Judge concluded that Newdow had Article III standing to bring an action seeking a total ban on prayers at inaugurations, and rejected President Bush's argument that exposure to religious prayer on television is different than exposure in person. See Newdow I (Magistrate Judge, July 21, 2001) at 5, 7. The Magistrate Judge noted that an inauguration is"a historic event of national importance to which the public is invited, if not encouraged, to view on television," and commented on the potential arbitrary nature of such a distinction, wondering if people attending who could not actually see or hear the prayer read would have standing. Id. at 5.

Although the Magistrate Judge found standing, he concluded that the motion to dismiss should be granted because it was not an Establishment Clause violation to have religious prayer at an inauguration. Id. at 9. President Bush subsequently sought dismissal of the remaining claimthe constitutionality of the actual 2001 inaugural prayer -- and in a December 28, 2001 decision the Magistrate Judge concluded that the final claim also should be dismissed because the court could not issue an injunction or declaratory relief against the President. See Newdow I (Magistrate Judge, Dec. 28, 2001), at 13. Newdow sought to amend his complaint to include Senator Mitch McConnell, chair of the JCCIC, but the Magistrate Judge found that amendment would be futile because the court also could not enjoin a member of Congress with regard to what is said at a Presidential inauguration. Newdow I (Magistrate Judge, Mar. 26, 2002) at 6-7. The District Court adopted the findings of the Magistrate Judge and dismissed Newdow's action. Newdow I (District Court, May 23, 2002 Order), at 2.

Newdow appealed to the Ninth Circuit, which affirmed the dismissal. In a brief decision, the Ninth Circuit held that"Newdow lacks standing to bring this action because he does not allege a sufficiently concrete and specific injury. See Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 482-86.... (1982)." Newdow v. Bush, 2004 WL 334438, at *1. The Ninth Circuit also upheld the district court's decision not to allow amendment of the complaint as futile. Id.

Several months later, Newdow brought this action against President Bush and others. As before, he claims that inaugural prayers violate the Establishment Clause, and as before, he asks this Court to enjoin the practice of giving religious prayers at Presidential inaugurations. Defendants maintain that Newdow has not alleged in this suit any new injury, law or facts sufficient to overcome the preclusive effect of the Ninth Circuit decision holding that Newdow had not alleged"a sufficiently concrete and specific injury" ...

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