On Feb. 23, a federal court will consider the latest attempt to secularize America, led by militant atheist lawyer Michael Newdow. His lawsuit, Newdow v. Roberts, seeks to purge all references to God from presidential inaugurations.
It's the latest assault on people of faith in America, with the goal of creating a purely secular society, and it will only get worse if President Obama fulfills his promise to recreate the Supreme Court.
Although originally filed to affect the 2009 inauguration, this suit now targets 2013 and beyond. Newdow v. Roberts seeks two changes to the ceremony. First, it seeks a court order forbidding the chief justice from saying "so help me God" as he administers the oath of office. Second, it seeks an order forbidding both prayers during the ceremony: the invocation and the benediction. Newdow's suit claims that these actions violate the Establishment Clause of the First Amendment.
The suit includes atheist plaintiffs from several states, and several aggressive organizations such as the Freedom From Religion Foundation. That's the group that posted a sign next to holiday displays in the Washington State Capitol last year saying there is no such thing as God or Heaven, and that religion enslaves minds. And plaintiff Newdow is the lawyer who tried to have the Pledge of Allegiance declared unconstitutional because it includes the words "one nation under God."
For 20 years, the Supreme Court has usually applied the "endorsement test" in Establishment Clause cases, asking whether the challenged government action gives the appearance that government endorses a particular faith. Newdow alleges that the inaugural events convey such an endorsement.
But his argument fails for three reasons. First, the endorsement test allows for "ceremonial deism," which the Court describes as solemnizing rituals at public events, or generic words of faith such as "In God We Trust" on currency. The generic religiosity of "so help me God" or prayers asking for national blessing fall within this category.
Second, the endorsement test is probably no longer the rule. Moderate former Justice Sandra Day O'Connor was long the fifth vote on the nine-member Supreme Court for the endorsement test. The Court's four conservatives, and the Court's one moderate, Anthony Kennedy, reject the test. Justice Kennedy instead argues for the more faith-friendly coercion test, which asks whether observers of the religious action feel coerced to lend their support to it. Justice Kennedy's writings make clear that he would not consider the inaugural actions coercive, and since he is now the swing vote on the Court, his test probably will be the new general rule.
Third, public prayer is sometimes subject to even more permissive rules. Prayers offered at legislative sessions—called "legislative prayer"—are protected as long as the prayer does not proselytize one faith or disparage other faiths. Inaugural prayers might receive similar protection.
No doubt one reason that Newdow named Chief Justice John Roberts as a defendant was to prevent him from ruling in favor of faith in this suit. If this case makes it to the Supreme Court, Newdow will request that Roberts recuse himself, eliminating one vote supporting the ceremony.
As the sign in the Washington State Capitol and the Pledge of Allegiance case illustrate, these aggressive atheists are not content with their legal right not to believe in God. They insist that all references to God be purged from every aspect of public life, thus forcing their view on the 93% of Americans that profess some form of faith in God.
Newdow is virtually certain to lose at this stage, but he's pursuing a long-term strategy based on Barack Obama's promises regarding federal judges. Obama vows to use liberal Justice Ruth Bader Ginsburg as his model for Supreme Court (and lower court) nominations. Justice Ginsburg—although brilliant—has a consistently liberal record of voting for the strictest separation of faith from public life.
Ginsburg's equally-liberal colleague, Justice John Paul Stevens, tried to strike down all public prayers in the 1983 legislative prayer case Marsh v. Chambers. Although liberals lost that one, if Obama gets to replace any of the conservative justices on the Court with justices who believe as Ginsburg and Stevens do, then several years from now, Newdow would have a Court that agrees with him, purging all prayers from public events.
President Obama's inauguration came and went, accompanied by prayers. Newdow v. Roberts, however, remains a dangerous case, and is a harbinger of coming attacks on constitutionally-protected public expressions of faith.