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.