Washington (CNSNews.com) - Atheist Michael Newdow and 30 other "nontheistic" plaintiffs say they will decide Friday whether to appeal Thursday's decision by a federal judge dismissing their demand that President-elect Barack Obama be barred from saying “So help me God” when he takes the oath of office Jan. 20.
U.S. District Court Judge Reggie B. Walton also refused to block prayers at the inaugural – leaving the Reverends Rick Warren and Joseph Lowery free to give the invocation and benediction at Obama’s swearing-in.
Newdow had sued to prevent the addition of "so help me God" to the oath and the prayers claiming they were unconstitutional and violated the “separation of church and state.”
But Walton said that the plaintiffs lacked standing to bring the suit because they failed to show any concrete "harm" that would result from allowing the prayers or the phrase to be said. The judge also said he did not have authority over the Presidential Inaugural Committee --a private entity that is not formally part of the U.S. government.
Walton found there is little difference between legislative prayer – which is constitutional --and presidential prayer, rejecting the notion that presidential prayer was similar to school-mandated prayer, which the Supreme Court has previously ruled unconstitutional.
Co-counsel Bob Ritter of the American Humanist Association said the decision was “profoundly disappointing.
This case is not about atheists merely 'feeling offended.' There is real harm,” Ritter said. “First, all Americans will be injured on January 20 by the Chief Justice, the Presidential Inaugural Committee and other defendants violating the principle of separation of church and state, which is the basis for our religious liberty.”
But Jay Sekulow, chief counsel of the American Center for Law and Justice, said the decision was welcome – and expected.
”Not surprising at all,” Sekulow told CNSNews.com. “We questioned from the outset both the issue of their legal standing to bring the suit and of course, ultimately, the challenge of ‘So Help me God’ and the invocation being unconstitutional – and the Court agreed and we’re glad they did. But no real shock there.”
The plaintiffs, meanwhile, will decide Friday whether to appeal the decision, according to Fred Edwords, a spokesman for the Anerican Humanist Association.
Edwords told CNSNews.com that the judge had merely dismissed an emergency request to stop the religious references at Obama’s inauguration.
“The case will continue,” Edwords told CNSNews.com, “Whether we appeal this ruling or not, the rest of our case continues forward for future inaugurations.”
But Sekulow said that attorneys defending the prayers and religious references will be ready in the event the ruling is appealed.
“In 2004, Mike Newdow took his case all the way to the United States Supreme Court seeking an emergency stay, so I’ve instructed our staff to be prepared to file briefs at the D.C. Circuit Court of Appeals and the U.S. Supreme Court, if necessary,” Sekulow said.
ACLJ had filed a friend-of-the-court legal brief Monday asking that Newdow’s case be dismissed, arguing that "prayers and oaths invoking God have been a staple of official inaugural events throughout history, across the country, and at every level of our government."
The brief also noted that the phrase “So Help Me God” dates back to the first president – George Washington.
“In his first inaugural address, President Washington proclaimed that ‘no people can be bound to knowledge and adore the Invisible Hand which conducts the affairs of men more than those of the United States,’ because ‘every step by which they have advanced to the character of an independent nation seems to have been distinguished by some token of providential agency,’ ” the brief said, quoting from Washington’s inaugural speech.
The atheist plaintiffs dispute that claim.
“It’s simply not true,” Edwords said. “Two or three leading librarians in the government have commented . . . that there is no evidence that George Washington ever did that. The first evidence that anyone said ‘So Help me God’ as part of the oath was 1881, and that was Chester A. Arthur.”
The National Archives, meanwhile, does credit Washington with adding the words "so help me God" when he took the oath in 1789, while Arthur’s is the first occasion to be specifically documented by an eyewitness.
Moreover, historians say the phrase has been in constant use in federal courtrooms since 1789.
Newdow, a Sacramento, Calif.-area physicianand attorney, first became famous more than four years ago for challenging the pharase "One nation, under God" in the Pledge of Allegiance.