Newdow v. Roberts

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 15, 2009 Decided May 7, 2010

No. 09-5126

MICHAEL ARTHUR NEWDOW, ET AL.,
APPELLANTS

v.

JOHN G. ROBERTS, JR., CHIEF JUSTICE OF THE U.S. SUPREME
COURT, ET AL.,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 1:08-cv-02248-RBW)

Michael Newdow argued the cause for appellants.
With him on the briefs was Robert V. Ritter.

Lowell V. Sturgill Jr., Attorney, U.S. Department of
Justice, argued the cause for appellees John G. Roberts, Jr., et
al. With him on the brief was Mark B. Stern, Attorney. Brad
P. Rosenberg, Attorney, entered an appearance.

Dominic F. Perella argued the cause for appellees
Presidential Inaugural Committee and Emmett Beliveau.
With him on the brief were Craig A. Hoover, Catherine E.
 2

Stetson, E. Desmond Hogan, Robert Bauer, and Andrew
Werbrock. Marc Elias entered an appearance.

H. Robert Showers and Kevin T. Snider were on the
brief for appellees Joseph Lowery and Richard Warren.

James Matthew Henderson, Sr. was on the brief for
amicus curiae American Center for Law & Justice in support
of appellees.

Greg Abbott, Attorney General, James C. Ho, Solicitor
General, C. Andrew Weber, First Assistant Attorney General,
Adam W. Aston, Assistant Solicitor General, David S. Morales,
Deputy Attorney General for Civil Litigation, Candice N.
Hance, Assistant Attorney General, Attorney General=s Office
of the State of Texas, Troy King, Attorney General, Attorney
General=s Office of the State of Alabama, Daniel S. Sullivan,
Attorney General, Attorney General=s Office of the State of
Alaska, Terry Goddard, Attorney General, Attorney General=s
Office of the State of Arizona, Dustin McDaniel, Attorney
General, Attorney General=s Office of the State of Arkansas,
Edmund G. Brown, Jr., Attorney General, Attorney General=s
Office of the State of California, John W. Suthers, Attorney
General, Attorney General=s Office of the State of Colorado,
Richard Blumenthal, Attorney General, Attorney General’s
Office of the State of Connecticut, Joseph R. Biden, III,
Attorney General, Attorney General=s Office of the State of
Delaware, Bill McCollum, Attorney General, Attorney
General=s Office of the State of Florida, Thurbert E. Baker,
Attorney General, Attorney General=s Office of the State of
Georgia, Mark J. Bennett, Attorney General, Attorney
General’s Office of the State of Hawaii, Lawrence G. Wasden,
Attorney General, Attorney General=s Office of the State of
Idaho, Lisa Madigan, Attorney General, Attorney General=s
Office of the State of Illinois, Gregory F. Zoeller, Attorney
General, Attorney General=s Office of the State of Indiana,
 3

Tom Miller, Attorney General, Attorney General=s Office of
the State of Iowa, Steve Six, Attorney General, Attorney
General=s Office of the State of Kansas, Jack Conway,
Attorney General, Attorney General=s Office of the
Commonwealth of Kentucky, James D. ABuddy@ Caldwell,
Attorney General, Attorney General=s Office of the State of
Louisiana, Janet T. Mills, Attorney General, Attorney
General=s Office of the State of Maine, Douglas F. Gansler,
Attorney General, Attorney General’s Office of the State of
Maryland, Martha Coakley, Attorney General, Attorney
General’s Office of the Commonwealth of Massachusetts,
Michael A. Cox, Attorney General, Attorney General’s Office
of the State of Michigan, Lori Swanson, Attorney General,
Attorney General’s Office of the State of Minnesota, Jim
Hood, Attorney General, Attorney General’s Office of the
State of Mississippi, Chris Koster, Attorney General, Attorney
General’s Office of the State of Missouri, Steve Bullock,
Attorney General, Attorney General’s Office of the State of
Montana, Jon C. Bruning, Attorney General, Attorney
General’s Office of the State of Nebraska, Catherine Cortez
Masto, Attorney General, Attorney General’s Office of the
State of Nevada, Michael A. Delaney, Attorney General,
Attorney General’s Office of the State of New Hampshire,
Anne Milgram, Attorney General, Attorney General’s Office
of the State of New Jersey, Gary K. King, Attorney General,
Attorney General’s Office of the State of New Mexico,
Andrew M. Cuomo, Attorney General, Attorney General’s
Office of the State of New York, Roy Cooper, Attorney
General, Attorney General’s Office of the State of North
Carolina, Wayne Stenehjem, Attorney General, Attorney
General’s Office of the State of North Dakota, Richard
Cordray, Attorney General, Attorney General’s Office of the
State of Ohio, W. A. Drew Edmondson, Attorney General,
Attorney General’s Office of the State of Oklahoma, John R.
Kroger, Attorney General, Attorney General’s Office of the
State of Oregon, Thomas W. Corbett, Jr., Attorney General,
 4

Attorney General’s Office of the Commonwealth of
Pennsylvania, Patrick C. Lynch, Attorney General, Attorney
General’s Office of the State of Rhode Island, Henry D.
McMaster, Attorney General, Attorney General’s Office of the
State of South Carolina, Marty J. Jackley, Attorney General,
Attorney General’s Office of the State of South Dakota, Robert
E. Cooper, Jr., Attorney General, Attorney General’s Office of
the State of Tennessee, Mark Shurtleff, Attorney General,
Attorney General’s Office of the State of Utah, William H.
Sorrell, Attorney General, Attorney General’s Office of the
State of Vermont, Bill Mims, Attorney General, Attorney
General’s Office of the Commonwealth of Virginia, Robert M.
McKenna, Attorney General, Attorney General’s Office of the
State of Washington, Darrell V. McGraw, Jr., Attorney
General, Attorney General’s Office of the State of West
Virginia, J. B. Van Hollen, Attorney General, Attorney
General’s Office of the State of Wisconsin, Bruce Salzburg,
Attorney General, Attorney General’s Office of the State of
Wyoming, and Vincent F. Frazer, Attorney General, Attorney
General’s Office of the U.S. Virgin Islands, were on the brief
of amici curiae States of Texas, et al. in support of appellees.

Before: GINSBURG, BROWN, and KAVANAUGH, Circuit
Judges.

Opinion for the Court filed by Circuit Judge BROWN.

Opinion concurring in the judgment filed by Circuit
Judge KAVANAUGH.

BROWN, Circuit Judge: Plaintiffs appeal the dismissal
of their constitutional challenge to religious elements of the
presidential inaugural ceremony. We affirm the dismissal
because plaintiffs’ claims regarding the 2009 inaugural
ceremony are moot and plaintiffs lack standing to challenge
the 2013 and 2017 inaugurations.
 5

I

Barack Obama was elected President of the United
States on November 4, 2008. Prior to and following his
election, organizations were formed to assist preparations for
the January 20, 2009 ceremony that would mark his
inauguration. The then President-elect created a private
coordinating group, the Presidential Inaugural Committee
(“PIC”), recognized by statute as “the committee appointed by
the President-elect to be in charge of the Presidential inaugural
ceremony and functions and activities connected with the
ceremony.” 36 U.S.C. § 501(1). By concurrent resolution,
Congress established the Joint Congressional Committee on
Inaugural Ceremonies (“JCCIC”) and authorized it to “utilize
appropriate equipment and the services of appropriate
personnel of departments and agencies of the Federal
Government” to “make the necessary arrangements for the
inauguration of the President-elect.” S. Con. Res. 67, 110th
Cong. (2008). The U.S. military services, pursuant to 10
U.S.C. § 2553, jointly formed the Armed Forces Inaugural
Committee (“AFIC”) to assist the JCCIC and the PIC in
“[p]lanning and carrying out” security and safety measures,
ceremonial duties, and other appropriate activities for the
inauguration. Id. § 2553(b).
Through the PIC, President Obama invited two private
ministers—Revs. Rick Warren and Joseph Lowery—to lead
invocation and benediction prayers, respectively, at the
inaugural ceremony. President Obama also communicated
his wish to John Roberts, Jr., Chief Justice of the United
States,1 that the Chief Justice administer the presidential oath
of office at the ceremony and append the phrase “So help me
God” to conclude the oath. See Declaration of Jeffrey P.
1
Both parties and the case heading refer to Chief Justice Roberts as “the
Chief Justice of the United States Supreme Court.” If one is to be
completely exact, however, the official title is simply “Chief Justice of the
United States.” 28 U.S.C. § 1.
 6

Minear, Counselor to the Chief Justice, Newdow v. Roberts,
Civil Action No. 08-2248 (D.D.C. Jan. 8, 2009), App. for
Appellants at 42.
While these preparations were ongoing, plaintiffs were
also preparing themselves to attend or view President Obama’s
inauguration. Plaintiffs—who individually describe
themselves as atheist, see, e.g., App. for Appellants at 125,
nonreligious and nontheistic, see, e.g., id. at 126, Secularist,
see, e.g., id. at 128, or humanist, see, e.g., id. at 136—were
hoping President Obama would eschew the prayers and the
“So help me God” phrase that have become traditional
elements of the inaugural ceremony. However, upon learning
these elements were scheduled to be part of the ceremony,
plaintiffs sought declaratory and injunctive relief in the district
court that would bar those elements for the 2009 as well as for
future inaugurations as violations of the First and Fifth
Amendments, and in particular the Establishment Clause of the
First Amendment. See Complaint at 1, Newdow, Civil Action
No. 08-02248 (D.D.C. Dec. 29, 2008). The complaint
represented the third Establishment Clause lawsuit the lead
plaintiff, Michael Newdow, has brought before federal courts
against religious elements of presidential inaugural
ceremonies. 2 Plaintiffs also moved for a preliminary
injunction six days after filing their initial complaint.
The district court, after a hearing, denied plaintiffs’
preliminary injunction motion and ordered them to show cause

2
Newdow’s first suit challenged President George W. Bush’s sanctioning
of a Christian prayer as part of the 2001 inaugural ceremony. The Ninth
Circuit ultimately dismissed that suit for lack of standing “because
[Newdow] d[id] not allege a sufficiently concrete and specific injury.”
Newdow v. Bush, 89 F. App. 624, 625 (9th Cir. 2004). Newdow’s second
suit, challenging President Bush’s second inaugural ceremony, was also
dismissed for lack of standing, because the doctrine of issue preclusion
prevented Newdow from relitigating the Ninth Circuit’s decision that he
lacked standing, and because the issue was moot. See Newdow v. Bush,
391 F. Supp. 2d 95, 99–101 (D.D.C. 2005). Newdow did not appeal that
decision. Br. for Appellants at 52.
 7

as to why their complaint should not be dismissed for lack of
standing and on grounds of issue preclusion related to
Newdow’s prior challenges, which had been dismissed on
standing grounds. See Order, Newdow, Civil Action No.
08-02248 (D.D.C. Jan. 16, 2009). Plaintiffs did not appeal the
denial and the inaugural ceremony took place as planned. See
Reply Br. for Appellants at 8. The district court then issued a
second show cause order directing plaintiffs to explain why
their complaint should not be dismissed as moot. See Show
Cause Order, Newdow, Civil Action No. 08-02248 (D.D.C.
Feb. 10, 2009). Plaintiffs responded to those orders and also
moved to amend their complaint to add more plaintiffs as well
as unnamed defendants and allegations concerning the 2013
and 2017 inaugural ceremonies.
Upon consideration of all parties’ responses to the
show cause orders, the district court dismissed the complaint.
It found plaintiffs lacked standing to challenge the 2009
inaugural ceremony and that Newdow was precluded from
challenging the inaugural prayers. See Order at 3, Newdow,
Civil Action No. 08-02248 (Mar. 12, 2009). While the district
court did not consider plaintiffs’ amended complaint, it noted
that the same standing issues afflicting the original complaint
and the original plaintiffs would also afflict the new complaint
and the new plaintiffs. See id. at 2 n.1.
Plaintiffs appealed to this court under 28 U.S.C. §
1291, and request that we reverse the district court’s rulings on
issue preclusion and standing and remand for a proceeding on
the merits. We review the district court’s dismissal of
plaintiffs’ suit de novo. See Young Am.’s Found. v. Gates,
573 F.3d 797, 799 (D.C. Cir. 2009).

II

The parties present three issues on appeal. The first is
whether the lead plaintiff, Newdow, is precluded by the
findings of prior cases from challenging inaugural prayers.
 8

The second is whether plaintiffs’ challenge to the 2009
inaugural ceremony is moot. The third is whether plaintiffs
have standing to bring their claims concerning the 2013 and
2017 inaugurations. We consider each issue in turn.

A

Plaintiffs argue that despite prior cases in which
Newdow was found to have lacked standing to challenge
inaugural prayers, he is not precluded from challenging those
prayers now because changes in circumstances and in the
relevant law have cured or made obsolete the standing issues
on which those prior challenges failed. Plaintiffs further
argue that issue preclusion need not be considered because
Newdow is not the only plaintiff in this case and if any of the
other plaintiffs has standing, then the status of Newdow’s
standing is irrelevant. See Carey v. Population Servs. Int’l,
431 U.S. 678, 682 (1977) (explaining that once one plaintiff
has standing, there is “no occasion to decide the standing of the
other [plaintiffs]”).
We agree with plaintiffs’ second argument, and
therefore do not address the first. The question of preclusion
with regard to Newdow is superfluous amidst other plaintiffs
in the case whose standing has not been passed upon in prior
cases. We put aside the issue of preclusion and move to the
more relevant questions of mootness and standing.

B

The federal defendants and the PIC argue that
plaintiffs’ challenge to the religious elements of the 2009
inaugural ceremony is moot. The brief for the federal
defendants—joined in full by the PIC in its brief, see Br. for the
PIC at 14—reasons that with the 2009 inauguration having
already occurred and the prayers and the oath already spoken,
the court is not in the practical or constitutional position to
 9

grant the declaratory and injunctive relief requested by
plaintiffs. Br. for Fed. Defs. at 14–15.
This argument rings true. It is a basic constitutional
requirement that a dispute before a federal court be “an actual
controversy . . . extant at all stages of review, [and] not merely
at the time the complaint is filed.” Steffel v. Thompson, 415
U.S. 452, 459 n.10 (1974). This rule assures that “federal
courts are presented with disputes they are capable of
resolving,” U.S. Parole Comm’n v. Geraghty, 445 U.S. 388,
397 (1980), and not mere opportunities to engage in spirited
sophistry. Whether the 2009 ceremony’s incorporation of the
religious oath and prayers was constitutional may be an
important question to plaintiffs, but it is not a live controversy
that can avail itself of the judicial powers of the federal courts.
It is therefore moot.
At oral argument, plaintiffs conceded their claims
regarding the 2009 inauguration would be moot under basic
mootness doctrine. See Tr. of Oral Argument at 6, 27, 52.
However, they contend their challenge is saved by an
exception to mootness for cases that are capable of repetition
but evade review. Reply Br. for Appellants at 3–9. The first
prong of that exception requires that resolution of an otherwise
moot case must have “a reasonable chance of affecting the
parties’ future relations.” Clarke v. United States, 915 F.2d
699, 703 (D.C. Cir. 1990). The second prong requires that
“the challenged action [be] in its duration too short to be fully
litigated prior to its cessation or expiration.” Weinstein v.
Bradford, 423 U.S. 147, 149 (1975).
Plaintiffs cannot lay claim to this exception. Even if
we assume plaintiffs’ challenge is capable of repetition, they
are barred from asserting it evaded review because plaintiffs
failed to appeal the district court’s denial of their preliminary
injunction motion. Had plaintiffs pursued an appeal of that
denial and had the preliminary injunction been granted, their
case would not have become moot. This circuit—along with
every other circuit to have considered the issue—has held that
 10

“a litigant who could have but did not file for a stay to prevent
a counter-party from taking any action that would moot his
case may not, barring exceptional circumstances, later claim
his case evaded review.” Armstrong v. FAA, 515 F.3d 1294,
1297 (D.C. Cir. 2008) (citing consistent cases from other
circuits).
We note that Armstrong’s language applies its rule to
stays and does not specifically discuss preliminary injunctions
or appeals from denials of preliminary injunctions. Plaintiffs
seize on Armstrong’s silence regarding appeals from denials
and suggest it means they fall under the exception. Reply Br.
for Appellants at 8–9. That suggestion is incorrect. It is
clear the principle of Armstrong requires a plaintiff to make a
full attempt to prevent his case from becoming moot, an
obligation that includes filing for preliminary injunctions and
appealing denials of preliminary injunctions. See Minn.
Humane Soc’y v. Clark, 184 F.3d 795, 797 (8th Cir. 1999)
(applying the rule to numerous avenues of preliminary relief,
including appeals). First, the difference between stays and
injunctions is of no moment. “Both can have the practical
effect of preventing some action before the legality of that
action has been conclusively determined,” with the difference
being that a stay “operates upon [a] judicial proceeding itself”
while an injunction acts upon a “party’s conduct.” Nken v.
Holder, 129 S. Ct. 1749, 1757–58 (2009). We see no reason
why this distinction is relevant to the reasoning of Armstrong.
Second, it is not logical to construe Armstrong’s principle as
stopping short of requiring plaintiffs to pursue appeals of
denials of injunctive relief. “[T]he capable-of-repetition
doctrine applies only in exceptional situations,” City of Los
Angeles v. Lyons, 461 U.S. 95, 109 (1983), and the Armstrong
rule ensures only situations that truly evade review in an
exceptional way fall under the doctrine’s umbrella. The
capable-of-repetition doctrine is not meant to save mooted
cases that may have remained live but for the neglect of the
plaintiff. We therefore find the exception inapplicable in this
 11

case.

C

We turn to the question of plaintiffs’ standing to
challenge the 2013 and 2017 inaugurations. 3 Standing is
determined under the familiar test established in Lujan v.
Defenders of Wildlife, 504 U.S. 555 (1992), which states a
plaintiff must: 1) have suffered an injury in fact; 2) that is fairly
traceable to the challenged action of the defendant; and 3) that
will likely be redressed by a favorable decision. Id. at
560–61. The absence of any one of these three elements
defeats standing. Id. at 561.
Plaintiffs do not claim President Obama’s recitation of
“So help me God” at the conclusion of his oath injured them.
See Br. for Appellants at 38. The President cannot be denied

3
Plaintiffs’ did not make claims regarding future inaugural ceremonies in
their original complaint but did so in a proposed amended complaint. The
district court, however, dismissed plaintiffs’ case without granting or
denying their motion for leave to amend. See Order at 3, Newdow, Civil
Action No. 08-02248 (D.D.C. Mar. 12, 2009). It would therefore appear
the issue of plaintiffs’ standing to challenge future inaugurations is not
before this court, since the complaint was not formally amended. That
places plaintiffs in the peculiar position of requesting that this court
“recognize” their proposed amended complaint, Br. for Appellants at 7,
since they are not in the position to appeal the district court’s non-action of
refusing to rule on their motion for leave to amend. See 28 U.S.C. § 1291
(granting courts of appeals jurisdiction only over appeals from “final
decisions of the district courts”). We observe that the district court
considered in its order—but did not decide—whether the amended
complaint exhibited standing to challenge future inaugurations, see Order at
2 n.1, Newdow, Civil Action No. 08-02248 (Mar. 12, 2009), that both
parties have fully briefed the standing issue, and that the motion for leave to
amend should have been granted as of right under the version of the federal
rules in effect at the time of plaintiffs’ motion, see FED. R. CIV. P. 15(a)(1)
(2009) (superseded Dec. 1, 2009). In light of these observations and in the
interests of judicial economy, we shall consider the standing issue. It
would serve no purpose beyond mere slavish adherence to form to do
otherwise.
 12

the prerogative of making such a religious reference, they
concede, because doing so would abrogate his First
Amendment rights. See Tr. of Oral Argument at 10–11.
For sure, if it were otherwise, George Washington could not
have begun the tradition by appending “So help me God” to his
own oath; Lincoln could not have offered a war-weary nation
“malice toward none” and “charity for all [] with firmness in
the right as God gives us to see the right”; Kennedy could not
have told us “that here on earth God’s work” must be our own;
nor could President Reagan have evoked “the shining city . . .
built on rocks stronger than oceans, windswept, God-blessed,
and teeming with people of all kinds living in harmony and
peace” in his farewell address. Instead, plaintiffs claim they
are injured because “God” was referenced by the Chief Justice
and the prayer leaders in the course of the 2009 ceremony.
These references, they argue, might have misled the
uninformed to think the imprimatur of the state had been
placed on the invocation of the Almighty and contributed to a
social stigma against them as atheists. See Tr. of Oral
Argument at 8–9. We will assume, without holding, that
plaintiffs’ claimed injury is an injury in fact and that it can be
fairly traced to the conduct of the defendants. It is in the third
element, redressability, where we find two problems with
plaintiffs’ case for standing.
First, plaintiffs request relief with regard to unnamed
defendants over whom this court has no jurisdiction.
Plaintiffs’ amended complaint targets “Other Unknown Oath
Administrators,” “Other PIC Defendants,” and “Other
Unnamed Clergy” whom the President or President-elect4 may
ask in the future to conduct and facilitate religious oaths and
prayers at the 2013 and 2017 inaugurations. First Amended
Complaint at 21–22, 24, Newdow, Civil Action No. 08-02248
4
This section references both the President and President-elect because the
2013 and 2017 inaugurations may involve either sitting Presidents
beginning a second term or a newly elected person who will not yet be
President until after the inaugural ceremony.
 13

(D.D.C. Mar. 10, 2009). It asks that we enjoin these
defendants from taking part in those elements of the ceremony
and to declare their possible actions in support of such
religious elements unconstitutional. See id. at 55. It is
impossible for this court to grant such relief. As a general
matter, a court will not entertain a suit unless the defendant has
been made a party by service of process. See FED. R. CIV. P.
4(m); Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S.
100, 110 (1969). Courts do grant an exception to this rule for
“John Doe” defendants, but only in situations where the
otherwise unavailable identity of the defendant will eventually
be made known through discovery. 5 See Gillespie v.
Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). This case is not
such a situation. No amount of discovery will uncover the
identities of the unnamed defendants. Therefore, by naming
as defendants all persons the future President could possibly
invite to administer an oath, lead a prayer, or help in the
planning of these events, plaintiffs are essentially seeking a
declaration of their rights accompanied by an injunction
against the world. There is another name for that type of
generally applicable relief: legislation. And that’s not within
the power of the courts. See Chase Nat’l Bank v. City of
Norwalk, 291 U.S. 431, 436–37 (1934) (holding that general
injunctions “violate[] established principles of equity
jurisdiction and procedure”).
The second redressability problem is that declaratory
and injunctive relief against the defendants actually named
would not prevent the claimed injury. Plaintiffs have sued the

5
It is under this exception that plaintiffs might have been able to pursue
“Other Governmental ‘Roe’ Defendants” who “along with or in addition to
the other Defendants . . . control access to the inaugural platform and to
[broadcast] audio-visual systems,” had their complaint otherwise met
standing requirements. First Amended Complaint at 23, Newdow, Civil
Action No. 08-02248 (D.D.C. Mar. 10, 2009). It is conceivable discovery
would have revealed other governmental actors that were made responsible
for the security and logistical arrangements of the ceremony.
 14

Chief Justice for the injury inflicted by the utterance of the
phrase “So help me God,” and they have sued the JCCIC, the
PIC, AFIC, and the named clergymen for the injury inflicted
by inaugural prayers. But while these defendants have had
some role in facilitating the injury in the past and may again in
the future, they possess no authority—statutory or
otherwise—to actually decide whether future inaugural
ceremonies will contain the offending religious elements.
The defendants make clear (and plaintiffs do not contest) that
the Chief Justice has no legal authority or duty to decide what
may be added to the presidential oath. See Declaration of
Jeffrey P. Minear, Counselor to the Chief Justice, Civil Action
No. 08-2248 (D.D.C. Jan. 8, 2009), App. for Appellants at 42.
It is also clear that the resolution and statute authorizing the
JCCIC and the AFIC, respectively, do not confer on those
entities the authority or duty to sponsor or determine the
contents of the inaugural ceremony. The committees are only
authorized—not obligated—to assist or make arrangements for
a ceremony should one take place. See S. Con. Res. 67, 110th
Cong. (2008); 10 U.S.C. § 2553. The PIC also has no
authority or duty to sponsor or determine the contents of the
inaugural ceremony. It is merely recognized by statute as a
coordinating committee should a future President designate
such a group. And, almost needless to say, the named
clergymen do not have any authority or duty to institute
inaugural prayers or lead them. Indeed, no law obligates the
President or President-elect to utilize the services of the Chief
Justice, the JCCIC, the AFIC, the PIC, or certain clergymen.
To make the point clearer, there is no law mandating that the
President or the President-elect even carry out an inaugural
ceremony. The inaugural ceremony is a peculiar institution,
the whole of which is subject to the President’s or
President-elect’s discretion (as plaintiffs concede, see Tr. of
Oral Argument at 53 (“[U]ltimately it’s the President who
makes all the decisions.”)). The named defendants are
powerless to direct, say no to, or otherwise stop the future
 15

President if he wishes to have his ceremony contain the
offending elements.
Therefore, issuing an injunction to prevent them from
implementing the future President’s inaugural plan would be
folly, akin to enjoining a sound technician from turning the
Chief Justice’s microphone on when administering the oath.
The defendants, like the sound technician, are not responsible
for the offending conduct and the future President could
simply find other willing assistants not subject to the
injunction to carry out his wishes. In other words, he could
find someone else to turn the microphone on. The future
President is therefore a “third party not before the court” whose
“independent action” results in the alleged injury, Lujan, 504
U.S. at 560, and courts cannot “redress injury . . . that results
from [such] independent action,” Simon v. E. Ky. Welfare
Rights Org., 426 U.S. 26, 41–42 (1976).6
Declaratory relief against the named defendants will
also not provide redress since a declaration with regard to
defendants’ conduct will have no controlling force on the
President or President-elect. Plaintiffs dispute this, arguing
that the possibility the future President will choose to abide by
a declaratory judgment establishes the appropriate level of
redressability to confer standing. For this proposition, they
cite two cases, both of which are inapplicable to this case.
First, plaintiffs cite language in Clinton v. City of New
York, 524 U.S. 417 (1998), stating that “traceability and
redressability are easily satisfied [when] injury is traceable to
the President’s [actions] and would be redressed by a
declaratory judgment that the [actions] are invalid.” Id. at 433
n.22. We put aside the fact that plaintiffs in that case (unlike

6
The Lujan Court discussed “independent action” by a “third party” in
reference to the causation prong of standing doctrine rather than
redressability. However, the Supreme Court acknowledged in subsequent
cases, such as Simon, that causation and redressability are closely related,
and can be viewed as “two facets” of a single requirement, Allen v.
Wright, 468 U.S. 737, 753 n.19 (1984).
 16

plaintiffs in this case) actually named the President in their
suit. Instead, we highlight that Clinton was a challenge to the
constitutionality of the Line Item Veto Act, and the declaratory
judgment in that case struck down that statute and nullified the
statutory power of the President to wield a line item veto pen.
See id. at 448–49. It was, in other words, a basic case of
judicial review of legislation. This case, however, challenges
no statutory power, but rather a decision committed to the
executive discretion of the President or the personal discretion
of the President-elect. A court—whether via injunctive or
declaratory relief—does not sit in judgment of a President’s
executive decisions. See Mississippi v. Johnson, 71 U.S. (4
Wall.) 475, 499 (1867) (“An attempt on the part of the judicial
department . . . to enforce the performance of [executive and
political] duties by the President [is] ‘an absurd and excessive
extravagance.’”) (quoting Chief Justice John Marshall); Swan
v. Clinton, 100 F.3d 973, 976 n.1 (D.C. Cir. 1996) (identifying
separation of powers issues raised by requests for declaratory
relief against the President). And plaintiffs fail to cite any
authority allowing this court to declare unlawful the personal
religious expression of a private citizen like the
President-elect.
The second case plaintiffs cite is Franklin v.
Massachusetts, 505 U.S. 788 (1992), which contains language
endorsing the idea that declaratory relief against an officer
subordinate to the President—in that case, the Secretary of
Commerce—made it “substantially likely that the President . . .
would abide by an authoritative interpretation” of the relevant
law “even though [he] would not be directly bound by such a
determination.” Id. at 803. This citation is unpersuasive.
First, that portion of the opinion did not garner the support of a
majority of the Supreme Court and is therefore not controlling
on this court. See id. at 789–90 (listing only three Justices
joining Part III of Justice O’Connor’s opinion containing its
standing discussion); see also id. at 825 (Scalia, J., concurring
in part and concurring in the judgment) (“Redressability
 17

requires that the court be able to afford relief through the
exercise of its power, not through the persuasive or even
awe-inspiring effect of the opinion explaining the exercise of
its power.”). Second, it is distinguishable. In that case, the
Commerce Secretary was obligated by statute to provide the
President with a report of the nation’s total population, see id.
at 799 (citing 13 U.S.C. § 141(a)), which the President consults
before sending his own statutorily required report to Congress
showing the population of each state for purposes of
apportioning the number of representatives in the House of
Representatives, see id. (citing 2 U.S.C. § 2(a)). In other
words, the Commerce Secretary was legally responsible for
providing the President with advice and information on which
he would base his final decision. Therefore, a plurality of the
Supreme Court thought declaratory relief applicable to the
Secretary’s legal duty would make it “likely” the President
would take the action desired by the plaintiffs, even if he was
not obligated to do so. See id. at 803. There is no
corresponding advisory relationship between the named
defendants and the President or President-elect in this case.
The future President is free to use any decisionmaking process
he desires when designing and staging an inaugural ceremony
and is not obligated to consult anybody or take any cognizance
of the opinions issuing from this court.
The only apparent avenue of redress for plaintiffs’
claimed injuries would be injunctive or declaratory relief
against all possible President-elects and the President himself.
But such relief is unavailable. Beyond the fact that plaintiffs
fail to name future President-elects or the President in their
suit, plaintiffs cannot sue all possible President-elects for the
same reason they cannot sue all possible inaugural
participants; as discussed, general injunctions are outside the
judicial power. With regard to the President, courts do not
have jurisdiction to enjoin him, see Mississippi, 71 U.S. (4
Wall.) at 501, and have never submitted the President to
declaratory relief, see Franklin, 505 U.S. at 827–28 (Scalia, J.,
 18

concurring in part and concurring in the judgment).

III

Plaintiffs’ claims regarding the 2009 inaugural
ceremony are moot and plaintiffs do not have standing to bring
their claims pertaining to the 2013 and 2017 ceremonies
because their injury is not redressable by this court. The
district court’s dismissal of their case is therefore
Affirmed.
 KAVANAUGH, Circuit Judge, concurring in the judgment:

Under the Supreme Court’s precedents, plaintiffs have
standing to raise an Establishment Clause challenge to the
Inaugural prayers and to the inclusion of the words “so help
me God” in the official Presidential oath administered at the
public Inauguration ceremonies. I would reject plaintiffs’
claims on the merits because those longstanding practices do
not violate the Establishment Clause as it has been interpreted
by the Supreme Court.

I

The Government initially argues that plaintiffs lack
standing to challenge the Presidential oath and Inaugural
prayers. I disagree. Under the relevant Supreme Court
precedents, plaintiffs have demonstrated injury-in-fact,
causation, and redressability, the three components of
standing.

A

To show injury-in-fact, plaintiffs must allege an injury
that is concrete and particularized. Plaintiffs are atheists.
They claim that they will attend the next Presidential
Inauguration and witness the Presidential oath and Inaugural
prayers – government-sponsored religious expression to
which they object. Those allegations suffice under the
Supreme Court’s precedents to demonstrate plaintiffs’
concrete and particularized injury.

An alleged Establishment Clause injury is sufficiently
concrete and particularized when the plaintiff sees or hears a
government-sponsored religious display or speech that
offends his or her beliefs. See In re Navy Chaplaincy, 534
F.3d 756, 764 (D.C. Cir. 2008). The Supreme Court has
consistently decided Establishment Clause cases involving
 2
objections to government-sponsored religious displays or
speech in public settings. See Van Orden v. Perry, 545 U.S.
677, 682, 691 (2005) (plurality opinion) (plaintiff
“encountered” Ten Commandments monument during visits
to state capitol in which he “walked by the monument”);
McCreary County v. ACLU, 545 U.S. 844, 852 (2005) (county
citizens saw Ten Commandments display that was “readily
visible” to them when they used courthouse to conduct civic
business); County of Allegheny v. ACLU, 492 U.S. 573, 587-
88 (1989) (local residents saw crèche in county courthouse
and menorah on town property); Lynch v. Donnelly, 465 U.S.
668, 671 (1984) (local residents saw crèche on town
property); Marsh v. Chambers, 463 U.S. 783, 784-86 (1983)
(member of legislature heard prayer at opening of each
legislative session); cf. Salazar v. Buono, No. 08-472, slip op.
at 3 (U.S. Apr. 28, 2010) (opinion of Kennedy, J.)
(recognizing that plaintiff’s standing to challenge public
display of a cross was accepted in prior lower-court
decision).1 Moreover, the fact that a large number of people
might see or hear the religious display or speech does not
negate a plaintiff’s standing. See FEC v. Akins, 524 U.S. 11,
24 (1998).

It is true that the Court did not pause to expressly address
standing in those religious display and speech decisions. And
“cases in which jurisdiction is assumed sub silentio are not
binding authority for the proposition that jurisdiction exists.”
In re Navy Chaplaincy, 534 F.3d at 764 (internal quotation
marks omitted). But the Supreme Court’s consistent
adjudication of religious display and speech cases over a span
1
The display and speech cases are distinct from those in which
a person simply becomes aware of government conduct to which
the plaintiff objects. See Valley Forge Christian College v.
Americans United for Separation of Church and State, Inc., 454
U.S. 464, 485-86 (1982); In re Navy Chaplaincy, 534 F.3d at 764.
 3
of decades suggests that the Court has thought it obvious that
the plaintiffs in those matters had standing. Indeed, none of
the dissenters in those cases ever contended that the plaintiffs
lacked standing. To ignore the import of those cases for the
standing analysis, one would have to believe the Supreme
Court repeatedly overlooked a major standing problem and
decided a plethora of highly controversial and divisive
Establishment Clause cases unnecessarily and inappropriately.
I find that prospect extremely unlikely. In light of the
Supreme Court’s precedents, plaintiffs here have alleged a
sufficiently concrete and particularized injury.

To satisfy the injury-in-fact requirement when
challenging a future event, plaintiffs also must show that the
alleged injury is “imminent.” That inquiry mirrors the test for
constitutional ripeness. See Nat’l Treasury Employees Union
v. United States, 101 F.3d 1423, 1427-28 (D.C. Cir. 1996);
see, e.g., MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118,
128 & n.8 (2007). To demonstrate imminence, plaintiffs must
allege an injury that is “substantially probable.” Stilwell v.
Office of Thrift Supervision, 569 F.3d 514, 518 (D.C. Cir.
2009). In this case, it is substantially probable that the
Presidential oath at the next Inauguration will include “so
help me God” and that there will be prayers during the
Inaugural ceremony. History, tradition, and common sense
tell us as much. As explained more fully below, both “so help
me God” and Inaugural prayers have long been staples of
Inaugural ceremonies, and there is no reason to think those
practices will cease soon.

Imminence is not defeated by the fact that the next
Inauguration remains a few years away. In Lee v. Weisman,
the Supreme Court decided a challenge to prayer at a high
school graduation that loomed in the distant future. 505 U.S.
577, 584 (1992). As that case exemplifies, imminence
 4
“requires only that the anticipated injury occur with[in] some
fixed period of time in the future, not that it happen in the
colloquial sense of soon or precisely within a certain number
of days, weeks, or months.” Fla. State Conference of the
NAACP v. Browning, 522 F.3d 1153, 1161 (11th Cir. 2008);
see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 565 n.2
(1992).

B

As to the causation and redressability elements of
standing, plaintiffs’ alleged injury is fairly traceable to the
defendants here – namely, the officer who recites the official
Presidential oath (the Chief Justice) and the entity that runs
the events and organizes the speakers (the Presidential
Inaugural Committee). See, e.g., Lee, 505 U.S. at 586
(permitting Establishment Clause suit against officials who
“direct the performance of a formal religious exercise”). An
injunction against the named defendants is therefore also
likely to redress plaintiffs’ alleged injuries. See Dynalantic
Corp. v. Dep’t of Defense, 115 F.3d 1012, 1017 (D.C. Cir.
1997) (“Typically, redressability and traceability overlap as
two sides of a causation coin.”).2

2
Plaintiffs acknowledge that a President on his or her own
might still say “so help me God” even if those words are not part of
the official oath recited by the Chief Justice. See Tr. of Oral Arg. at
10-11; Plaintiffs’ Br. at 37-38. In this suit, plaintiffs do not seek to
constrain a President’s choice of what he or she says at the
Inaugural ceremonies, whether during the oath or the Inaugural
Address. Nor do plaintiffs argue that a private ceremony that
included “so help me God” or prayer would be impermissible.
Rather, plaintiffs challenge the inclusion of “so help me God” in the
official Presidential oath articulated by the Chief Justice in a public
ceremony, as well as the Inaugural prayers delivered by the selected
clergy during that public ceremony.
 5

To be sure, it is possible that the Presidential Inaugural
Committee’s responsibilities might be transferred to a
successor entity before the next Inauguration, akin to the way
the named defendant changes when there is turnover in a
government office. Cf. FED. R. CIV. P. 25(d). But
redressability is still satisfied because “a declaration of the
[plaintiffs’] legal right . . . could form the basis of an
injunction” against the entity to which the committee’s
responsibilities are transferred. Center for Arms Control &
Non-Proliferation v. Pray, 531 F.3d 836, 839 n.* (D.C. Cir.
2008). In addition, as in any challenge to future government
action, it is theoretically possible that Congress or the
President could completely change the nature of the Inaugural
ceremonies before the next Inauguration. But the question is
one of “likelihood.” Steel Co. v. Citizens for a Better Env’t,
523 U.S. 83, 103 (1998); Lujan, 504 U.S. at 561. The next
Inaugural ceremony likely will resemble past Inaugurals, just
as the Supreme Court in Lee v. Weisman concluded that the
high school’s next graduation prayer likely would resemble
past graduation prayers.

Because plaintiffs have standing, I turn to the merits of
plaintiffs’ Establishment Clause claims.

II

The First Amendment to the United States Constitution
provides that “Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise
thereof.” U.S. CONST. amend. I. The Supreme Court has
interpreted that elusive text on many occasions. The question
here is whether the Presidential oath and Inaugural prayers
contravene the relevant Supreme Court precedents.
 6
A

In analyzing the Establishment Clause issues in this case,
I begin with several background principles.

First is an obvious point, but one worth emphasizing. In
our constitutional tradition, all citizens are equally American,
no matter what God they worship or if they worship no god at
all. Plaintiffs are atheists. As atheists, they have no lesser
rights or status as Americans or under the United States
Constitution than Protestants, Jews, Mormons, Muslims,
Hindus, Buddhists, Catholics, or members of any religious
group.

Second, in deciding this case, we cannot gloss over or
wish away the religious significance of the challenged
Inaugural prayers. The fact that religious words are common
to many faiths – or are used repeatedly – does not diminish
their religious meaning. Neither the numbing effect of
repetition nor the brevity of a prayer extinguishes the
religious nature of words such as “help me God.”

Third, and relatedly, we cannot resolve this case by
discounting the sense of anguish and outrage plaintiffs and
some other Americans feel at listening to a government-
sponsored religious prayer. Any effort to tell plaintiffs that
“it’s not a big deal” or “it’s de minimis” would be entirely out
of bounds, in my judgment. Plaintiffs’ beliefs and sincere
objections warrant our respect.

Fourth, at the same time, we likewise cannot dismiss the
desire of others in America to publicly ask for God’s blessing
on certain government activities and to publicly seek God’s
guidance for certain government officials. Plaintiffs suggest
that no one should be upset if government ceremonies were
 7
entirely cleansed of religious expression; they argue that such
a regime would reflect true government “neutrality” toward
religion. Others respond, however, that stripping government
ceremonies of any references to God or religious expression
would reflect unwarranted hostility to religion and would, in
effect, “establish” atheism. Cf. Salazar v. Buono, No. 08-472,
slip op. at 14-15 (U.S. Apr. 28, 2010) (opinion of Kennedy,
J.) (“The goal of avoiding governmental endorsement does
not require eradication of all religious symbols in the public
realm. . . . The Constitution does not oblige government to
avoid any public acknowledgment of religion’s role in
society.”); Lee v. Weisman, 505 U.S. 577, 598 (1992) (“A
relentless and all-pervasive attempt to exclude religion from
every aspect of public life could itself become inconsistent
with the Constitution.”).

B

With that background in mind, I turn to the Establishment
Clause analysis of the Presidential oath and Inaugural prayers.
To begin, the Supreme Court’s Establishment Clause
jurisprudence does not set forth a one-size-fits-all test. See
Salazar, No. 08-472, slip op. at 18 (opinion of Kennedy, J.);
Van Orden v. Perry, 545 U.S. 677, 686 (2005) (plurality
opinion); Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687,
718 (1994) (O’Connor, J., concurring in part and concurring
in judgment). Rather, the Court ordinarily analyzes cases
under various issue-specific rules and standards it has
devised.

This case concerns government-sponsored religious
speech at public events outside of the public school setting.
The Supreme Court’s landmark ruling in Marsh v. Chambers,
463 U.S. 783 (1983), sets forth the Court’s approach to that
issue. In Marsh, the Court upheld a state legislature’s practice
 8
of beginning each session with prayer by a state-paid
chaplain. The Court reasoned that the practice of opening
legislative sessions with prayer was “deeply embedded in the
history and tradition of this country.” Id. at 786. Since the
Founding, the “practice of legislative prayer has coexisted
with the principles of disestablishment and religious
freedom.” Id. The practice is “part of the fabric of our
society” such that the invocation of God was “not, in these
circumstances, an ‘establishment’ of religion . . . [but] simply
a tolerable acknowledgment of beliefs widely held among the
people of this country.” Id. at 792.3

3
Marsh is consistent with the Supreme Court’s broader
approval, albeit sometimes in dicta, of a variety of governmental
references to God and prayers in the public square – sometimes
known by the umbrella term “ceremonial deism.” See Elk Grove
Unified Sch. Dist. v. Newdow, 542 U.S. 1, 37 (2003) (O’Connor, J.,
concurring in judgment); County of Allegheny v. ACLU, 492 U.S.
573, 603 (1989); id. at 630 (O’Connor, J., concurring in part and
concurring in judgment); Lynch v. Donnelly, 465 U.S. 668, 716
(1984) (Brennan, J., dissenting). These include: Congress’s
selection of “In God we trust” as the National Motto, 36 U.S.C. §
302, the inclusion of “under God” in the Pledge of Allegiance, 4
U.S.C. § 4, and the President’s Thanksgiving Day Proclamations.
See Van Orden, 545 U.S. at 699 (binding opinion of Breyer, J.)
(motto and Thanksgiving Proclamation); County of Allegheny, 492
U.S. at 602-03 (motto and Pledge); Lynch, 465 U.S. at 676 (motto,
Pledge, and Thanksgiving Proclamation); Zorach v. Clauson, 343
U.S. 306, 312-13 (1952) (Thanksgiving Proclamation); Steven B.
Epstein, Rethinking the Constitutionality of Ceremonial Deism, 96
COLUM. L. REV. 2083, 2094-96 (1996). Under the Court’s
precedents, these “ceremonial deism” principles do not always
translate to the public school setting where young students face
inherent coercion. See Lee, 505 U.S. 577; Engel v. Vitale, 370 U.S.
421 (1962).
The Court’s religious display cases have followed an approach
similar to the speech cases. See Salazar, No. 08-472; Van Orden,
 9

As to the permissible content of the legislative prayers,
the Marsh Court articulated a somewhat ambiguous standard:
“The content of the prayer is not of concern to judges where,
as here, there is no indication that the prayer opportunity has
been exploited to proselytize or advance any one, or to
disparage any other, faith or belief. That being so, it is not for
us to embark on a sensitive evaluation or to parse the content
of a particular prayer.” Id. at 794-95.

The Supreme Court’s holding in Marsh – allowing
government-sponsored religious speech or prayer at a public
event where prayers have traditionally occurred, at least so
long as the prayers are not proselytizing (seeking to convert)
or otherwise exploitative – does not satisfy all Americans. No
holding on this issue would in our pluralistic society. But the
precedent has endured, and as a lower court we must follow
and apply it in this case.

545 U.S. 677; McCreary County v. ACLU, 545 U.S. 844 (2005);
County of Allegheny, 492 U.S. 573; Lynch, 465 U.S. 668. But
because of their fixed quality, displays have caused somewhat more
concern than spoken words, which by their nature are fleeting. Cf.
Salazar, No. 08-472, slip op. at 11-12 (opinion of Kennedy, J.);
Van Orden, 545 U.S. at 701 (binding opinion of Breyer, J.); id. at
722-23 (Stevens, J., dissenting); McCreary County, 545 U.S. at
868-69, 877 n.24; County of Allegheny, 492 U.S. at 661 (Kennedy,
J., concurring in judgment in part and dissenting in part) (“I doubt
not, for example, that the Clause forbids a city to permit the
permanent erection of a large Latin cross on the roof of city hall.
This is not because government speech about religion is per se
suspect, as the majority would have it, but because such an
obtrusive year-round religious display would place the
government’s weight behind an obvious effort to proselytize on
behalf of a particular religion.”).
 10
C

Like the legislative prayer in Marsh, the words “so help
me God” in the Presidential oath are not proselytizing or
otherwise exploitative. Moreover, like the practice of
legislative prayer, use of “so help me God” in oaths for
government officials is deeply rooted in the Nation’s history
and tradition. By many accounts, George Washington said
“so help me God” when he took the first Presidential oath in
New York on April 30, 1789. The First Congress – the same
Congress that drafted and approved the First Amendment –
mandated “so help me God” in the oaths of office for federal
judges. See 1 ANNALS OF CONG. 928-29 (Sept. 17, 1789)
(Joseph Gales ed., 1789) (final congressional approval of
statute requiring oath for judges); id. at 948 (Sept. 24, 1789)
(final congressional approval of First Amendment); see also
Judiciary Act of 1789, § 8, 1 Stat. 73, 76 (1789) (signed into
law on Sept. 24, 1789). State constitutions in effect at the
ratification of the First Amendment similarly included “so
help me God” in state officials’ oaths of office. See, e.g.,
MASS. CONST. pt. 2, ch. VI, art. I (1780); N.H. CONST. pt. 2
(1784); VT. CONST. ch. II, § XII (1786).

The words “so help me God” remain to this day a part of
oaths prescribed by law at the federal and state levels. See,
e.g., 5 U.S.C. § 3331 (federal civil service and military
officers); 28 U.S.C. § 453 (federal justices and judges); id. §
951 (federal court clerks and deputies); ALA. CONST. art. XVI,
§ 279; ARIZ. REV. STAT. § 38-231(E); CONN. CONST. art. 11, §
1; DEL. CONST. art. XIV, § 1; FLA. CONST. art. II, § 5(b); KAN
STAT. ANN. § 54-106; KY. CONST. § 228; LA. CONST. art. X, §
30; ME. CONST. art. IX, § 1; MASS. CONST. amend. art. VI;
MISS. CONST. art. 14, § 268; MONT. CONST. art. III, § 3; NEV.
CONST. art. XV, § 2; N.H. CONST. pt. II, art. 84; N.J. STAT.
ANN. § 52:15-2; N.M. STAT. § 14-13-1; N.C. GEN. STAT. §
 11
11-11; N.D. CONST. art. XI, § 4; R.I. CONST. art. III, § 3; S.C.
CONST. art. VI, § 5; TEX. CONST. art. XVI, § 1; VT. CONST.
ch. II, § 56; VA. CONST. art. II, § 7; WIS. STAT. § 19.01; WYO.
STAT. ANN. § 1-2-103.4

In light of that extensive historical record and the non-
proselytizing, non-exploitative nature of the oath, it comes as
no surprise that the Supreme Court several times has
suggested, at least in dicta, that the Constitution permits “so
help me God” in officially prescribed oaths of office. See
Sch. Dist. of Abington Township v. Schempp, 374 U.S. 203,
212-13 (1963) (that “religion has been closely identified with
our history and government . . . . is evidenced today in our
public life through the continuance in our oaths of office from
the Presidency to the Alderman of the final supplication, ‘So
help me God’”); Zorach v. Clauson, 343 U.S. 306, 312-13
(1952) (it is “common sense” that the First Amendment “does
not say that in every and all respects there shall be a
separation of Church and State” as evidenced by the inclusion
of “‘so help me God’ in our courtroom oaths”). Many
Justices have reiterated the point in separate opinions over the
years. See McCreary County v. ACLU, 545 U.S. 844, 886
(2005) (Scalia, J., dissenting); Elk Grove Unified Sch. Dist. v.
Newdow, 542 U.S. 1, 26 (2004) (Rehnquist, C.J., concurring

4
An officer or employee of course may decline to say “so help
me God” on free exercise, anti-coercion grounds. See Torcaso v.
Watkins, 367 U.S. 488 (1961); see also U.S. CONST. art. VI, cl. 3.
So too, no one in the audience at a public ceremony may be
compelled to utter religious words. See West Virginia State Bd. of
Ed. v. Barnette, 319 U.S. 624 (1943). Those bedrock rights are
analytically quite different, however, from a third-party observer’s
asserted anti-establishment right to prevent inclusion of “so help me
God” in an official oath taken by someone else or to halt a prayer
said by someone else.
 12
in judgment); id. at 36 n.* (O’Connor, J., concurring in
judgment).

Under Marsh and other Supreme Court precedents, the
Establishment Clause permits “so help me God” in the official
Presidential oath.

D

Plaintiffs’ challenge to the traditional Inaugural prayers
(usually consisting of an invocation and benediction) also
fails. Those prayers closely resemble the legislative prayers
upheld by the Supreme Court in Marsh.

Like legislative prayers, prayers at Presidential Inaugural
ceremonies are deeply rooted in American history and
tradition. See County of Allegheny v. ACLU, 492 U.S. 573,
671-72 n.9 (1989) (Kennedy, J., concurring in judgment in
part and dissenting in part) (“our Presidential inaugurations
have traditionally opened with a request for divine blessing”).
Indeed, formal prayers “have been associated with
presidential inaugurations since the inauguration of George
Washington.” Steven B. Epstein, Rethinking the
Constitutionality of Ceremonial Deism, 96 COLUM. L. REV.
2083, 2106 (1996). During the first Inauguration, the new
President, Vice President, and Members of Congress – in
accordance with a resolution passed by the First Congress –
“proceeded to St. Paul’s Chapel, where divine service was
performed” by the Senate chaplain. 1 ANNALS OF CONG. 29
(Joseph Gales ed., 1789); see also Epstein, Ceremonial
Deism, 96 COLUM. L. REV. at 2106-07. “It is to be noted that
this was not a service provided by an Episcopal church to
which senators and representatives were invited, but an
official service carefully arranged for by both houses of
Congress and conducted by their duly elected chaplain.” 1
 13
ANSON PHELPS STOKES, CHURCH AND STATE IN THE UNITED
STATES 485 (1950). Inaugural prayers were conducted by the
Senate chaplain in the Senate chambers until 1937; since then,
the prayers typically have taken place on the Inaugural
platform at the Capitol grounds. See App. at 20-23; Epstein,
Ceremonial Deism, 96 COLUM. L. REV. at 2107 & n.137.

To be sure, unlike Marsh, this case involves the
Executive, not the Legislature. But there is no persuasive
reason why opening every “executive session” with prayer
would raise more of an Establishment Clause problem than
opening every “legislative session” with prayer.

Having established that Inaugural prayers are permissible
in concept, we confront a distinct and delicate question
regarding the precise content of the prayers. Recall that
Marsh stated that “[t]he content of the prayer is not of
concern to judges where, as here, there is no indication that
the prayer opportunity has been exploited to proselytize or
advance any one, or to disparage any other, faith or belief.
That being so, it is not for us to embark on a sensitive
evaluation or to parse the content of a particular prayer.”
Marsh, 463 U.S. at 794-95.

Under Marsh, we know that proselytizing prayers – that
is, those that seek to convert – are problematic. Inaugural
prayers traditionally have not crossed that boundary.

But what about sectarian references – that is, prayers
associated only with particular faiths, or references to deities,
persons, precepts, or words associated only with particular
faiths? (References such as God and Lord are generally
considered non-sectarian for these purposes.) Does a
sectarian reference mean for purposes of Marsh that the
“prayer opportunity has been exploited to proselytize or
 14
advance any one, or to disparage any other, faith or belief”?
If so, the Presidential Inaugural prayers might pose a problem
because they have included sectarian references. For
example, the prayers at the 2009 Inauguration contained a
reference to Jesus, a recitation of a Protestant version of the
“Our Father,” and a quotation from the Shema, an important
prayer in Judaism. See 155 CONG. REC. S667 (daily ed. Jan.
20, 2009).

Marsh indicates, however, that the Establishment Clause
does not ban any and all sectarian references in prayers at
public ceremonies. Some of the prayers at issue in Marsh
itself were Christian, and others were in the Judeo-Christian
tradition. See Van Orden, 545 U.S. at 688 n.8 (plurality
opinion) (noting that “prayers [in Marsh] were often explicitly
Christian”).

In the wake of Marsh, moreover, our en banc Court
upheld the practice of Congressional prayers, which then (as
now) sometimes included sectarian references. See Murray v.
Buchanan, 720 F.2d 689 (D.C. Cir. 1983) (en banc) (per
curiam). The Fourth, Tenth, and Eleventh Circuits have
similarly concluded that Marsh does not prohibit any and all
sectarian references. See Pelphrey v. Cobb County, 547 F.3d
1263, 1271-72 (11th Cir. 2008); Simpson v. Chesterfield
County Bd. of Supervisors, 404 F.3d 276, 281-82 n.3 (4th Cir.
2005); Snyder v. Murray City Corp., 159 F.3d 1227, 1234
(10th Cir. 1998) (en banc); see also Doe v. Tangipahoa
Parish Sch. Bd., 473 F.3d 188, 211 (5th Cir. 2006) (opinion of
Clement, J.). But see Wynne v. Town of Great Falls, 376 F.3d
292, 298-99 (4th Cir. 2004).5

5
As several courts have concluded, the Supreme Court’s post-
Marsh decision in County of Allegheny does not mandate that a
prayer be entirely non-sectarian. See Pelphrey, 547 F.3d at 1271-
 15

The more nuanced issue, therefore, is how courts should
distinguish permissible sectarian references from
impermissible sectarian references in determining under
Marsh whether a “prayer opportunity has been exploited to
proselytize or advance any one, or to disparage any other,
faith or belief.” As Judge Pryor explained in his thoughtful
opinion for the Eleventh Circuit, courts must approach that
difficult task with sensitivity lest they become “ecclesiastical
arbiter[s].” Pelphrey, 547 F.3d at 1274. In that regard, the en
banc Tenth Circuit’s formulation is instructive: “the kind of []
prayer that will run afoul of the Constitution is one that
proselytizes a particular religious tenet or belief, or that
aggressively advocates a specific religious creed, or that
derogates another religious faith or doctrine.” Snyder, 159
F.3d at 1234 (emphasis added); see also Doe, 473 F.3d at
213-14 (opinion of Clement, J.) (expressing approval of the
Tenth Circuit test). Under Marsh, therefore, sectarian
references alone typically do not render a prayer
impermissible. But at some point sectarian references can
become so overwhelming and one-sided that the prayer
opportunity can be said to have been “exploited” to “advance
any one, or to disparage any other, faith or belief.” That is
particularly true when other factors suggest exploitation of the
prayer opportunity. See Pelphrey, 547 F.3d at 1277.

72 (plaintiffs “argue that Allegheny requires us to read Marsh
narrowly to permit only nonsectarian prayer, but they are wrong”);
Simpson, 404 F.3d at 281-82 n.3 (“Nothing in Allegheny suggests
that it supplants Marsh in the area of legislative prayer.”); see also
Turner v. City Council of Fredericksburg, 534 F.3d 352, 356 (4th
Cir. 2008) (O’Connor, J., sitting by designation) (“We need not
decide whether the Establishment Clause compelled the Council to
adopt their [non-sectarian] legislative prayer policy, because the
Establishment Clause does not absolutely dictate the form of
legislative prayer.”).
 16

Review of the modern Inaugural prayers yields no
indication that this admittedly imprecise Marsh principle is
being breached. Inaugural prayers are traditionally inclusive
and largely non-sectarian. They typically include many
references to God, Lord, and the like, which are considered
non-sectarian for these purposes. The sectarian references in
Inaugural prayers tend to be limited in number, as was the
case at the 2009 Inauguration for example. In short, it cannot
be said for purposes of Marsh that the Presidential
Inauguration is being “exploited to proselytize or advance any
one, or to disparage any other, faith or belief.”6

III

In an emergency motion filed before the oral argument in
this case, plaintiffs moved that we dispense with the Court’s
invocation, “God save the United States and this honorable
Court.” According to plaintiffs, that traditional invocation is
unconstitutional. We denied the motion, and I take this
opportunity to explain my vote.

The traditional prayer before this Court’s sessions (and
before the Supreme Court’s sessions) is analogous to “so help
me God” in the Presidential oath and to the legislative prayers
upheld in Marsh. As with the legislative prayers in Marsh,
the use of “God save the United States and this honorable
Court” before court sessions does not proselytize or otherwise
exploit the prayer opportunity so as to advance any one, or to
disparage any other, faith or belief. And this prayer is deeply

6
The constitutional question whether some sectarian
references in Inaugural prayers are permissible under Marsh is of
course separate from the policy question whether such references
should be included.
 17
rooted in American history and tradition. See McCreary
County v. ACLU, 545 U.S. 844, 886 (2005) (Scalia, J.,
dissenting) (prayer used under John Marshall); Elk Grove
Unified Sch. Dist. v. Newdow, 542 U.S. 1, 29 (2003)
(Rehnquist, C.J., concurring in judgment) (prayer used in
Supreme Court at least since 1827). Therefore, under the
Marsh test, the prayer “God save the United States and this
honorable Court” before court sessions is constitutionally
permissible. Indeed, Marsh itself specifically referenced
“God save the United States and this honorable Court” as a
quintessential example of a permissible religious reference.
See Marsh v. Chambers, 463 U.S. 783, 786 (1983); see also
Zorach v. Clauson, 343 U.S. 306, 313 (1952). Many Justices
in individual opinions have indicated their agreement with
that conclusion. See Van Orden v. Perry, 545 U.S. 677, 716
(2005) (Stevens, J., dissenting); McCreary County, 545 U.S.
at 886 (Scalia, J., dissenting); Elk Grove, 542 U.S. at 29
(Rehnquist, C.J., concurring in judgment); id. at 37
(O’Connor, J., concurring in judgment); County of Allegheny
v. ACLU, 492 U.S. 573, 672 (1989) (Kennedy, J., concurring
in judgment in part and dissenting in part); Wallace v. Jaffree,
472 U.S. 38, 84 (1985) (Burger, C.J., dissenting); Lynch v.
Donnelly, 465 U.S. 668, 693 (1984) (O’Connor, J.,
concurring); id. at 714 (Brennan, J., dissenting).

In light of the relevant Supreme Court precedents,
plaintiffs’ challenge to “God save the United States and this
honorable Court” is unavailing.

***

Applying Marsh and the other relevant Supreme Court
precedents, I would hold that both “so help me God” in the
Presidential oath and the prayers at the Presidential
Inauguration do not violate the Establishment Clause. I also
 18
agree with our Court’s decision to deny plaintiffs’ challenge
to the invocation “God save the United States and this
honorable Court.”