(CNSNews.com) - The self-professed atheist who failed to get the Supreme Court to declare unconstitutional the phrases “One Nation Under God” (in the Pledge of Allegiance) and “So Help Me God” (in the presidential oath of office) is not giving up on his effort.
California attorney and physician Michael Newdow filed a petition with the U.S. Court of Appeals for the District of Columbia Circuit on Wednesday requesting an en banc (full panel) re-hearing of Newdow v. Roberts – the lawsuit Newdow filed to try to stop Chief Justice John Roberts from using the phrase "so help me God" when he administered the oath of office to then-President-elect Obama.
The suit, which Newdow originally filed Dec. 31, 2008 allong with more than a dozen atheist and humanist groups, also sought a ban on the inclusion of prayers – both the invocation and the benediction – in presidential inaugurations and other official swearing-in or oath-taking ceremonies.
A temporary restraining order was denied in January, and on March 12, 2009, federal Judge Reggie B. Walton in Washington ruled that Newdow and the other plaintiffs lacked the necessary standing to bring the case to court. Just over a year later, on May 7 of this year, a three-judge panel affirmed Walton's order.
Bob Ritter, co-counsel with Newdow on the lawsuit and staff attorney for the American Humanist Association, said the appeals court should grant the re-hearing.
"I continue to firmly believe that the religious practices of presidential inaugural ceremonies run afoul of the First Amendment, and the courts have the judicial power to declare these acts unconstitutional and enjoin such practices from occurring at future ceremonies," Ritter said.
But Jay Sekulow, chief counsel for the American Center for Law and Justice said that Newdow is waging an uphill battle.
“(It’s) not a surprise, but I think it’s a futile effort, because he (Newdow) doesn’t have any real sympathy on the court – both on the Court of Appeals or the Supreme Court – for his position,” Sekulow told CNSNews.com.
“Justice O’Connor, in the original Newdow case, made the statement that we are a country founded by religious refugees and that our history binds us to that tradition. And I think that’s where a majority of the court still is – maybe more so now with the changes in the court."
Sekulow added: "Look, he has the right to do it, but it’s an uphill battle for him to say the least.”
Sekulow, one of the nation's premier legal experts in religious freedom cases, said he doubts if the D.C. Circuit will grant an "en banc" review, which is reconsideration of a case by all of the judges in the circuit -- not just by a three-judge panel.
Even if they do, Sekulow said, "I’m convinced that he won’t get certiorari ”-- the writ of acceptance that the Supreme Court issues for cases it chooses to hear.