Opposition Brief — Newdow v. Roberts

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| a APR 8 - 2011

No. 10-757

kf FOR THE FEDERAL RESPOD

IN OPPOSITION

court of appeals correctly held that }

ners lack standing to challenge the possible inclusio

the phrase “so help me God” and prayer in the 201

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tiorar] was filed on septem! POL

1d prayer itl ne pre idential Inauyurallon Ceremo!l

thortly before the January 2009 inauguration of Pre

dent Obama. The district court dismissed the suit on the

round that petitioners lacked standing. Pet. App. 4

Q. The court of appeal -affirmed. /d. at 1-42

|. In 2008, Barack Obama was elected President

[Jnited States. Then-President-elect Obama chosi

o take his oath of office in an inauguration ceremony

be conducted on the West Front of the United Stat

Capitol Building. ‘To help make the necessary arrange

nent for the eremony Congre ereated a Jon

ongressional Committee on Inaugural Ceremoni

ICCC), as it had fo previou Inauguration Pet Ap)

ee S. Con. Res. 67, 110th Cong., 2d Se (200%) (e1

ted). Additional support for the inauguration was |

ided by a joint military inter-service committe

rmed Force Inaugural Committee (AF ILC Pet Ap}

President-elect Obama al Oo created a pri ibe enti

e Presidential Inaugural Committee (PIC), to coord

ite numerous ceremonial events a ociated with t

009 inauguration, including the inaugural parade at

naucural ball lbid Ce 46H ae ( OC L) (aetining ry

iCca “the committee appointed Dy the Pre ident Ole

I n Cnary of the Presidentia nauvural rr

U] U)

i } t}

private clergy n 1 . W a)

joseph Lowe} lelivel ith

! } LO] pect) ‘ J. auyYl C Il ] ral

I’) lent-« Obama } !

ef Justice of tl ted Sta John G. |]

scribed by the Constitution. See U.S. Const. Art. [1,8 1,

Cl. 8; Pet. App. 6-7.

2. After learning of President-elect Obama’s plans

for his inauguration, petitioners filed this suit against

the JCCIC and its chairperson; the AFIC and its chair

person; the PIC and its then-director; the Chief Justice;

and Reverends Warren and Lowery (collectively, re-

spondents). The complaint sought declaratory and in

junctive relief barring the Chief Justice from reciting

the words “so help me God” as part of his administration

of the oath of office to President-elect Obama or at any

future presidential inauguration, and barring defen

dants from “utilizing any clergy” to engage in any reli-

rious acts at President Obama’s inauguration or any

future presidential inauguration. 1:08-ev-02248 Compl.

paras. [-VII (filed Dec. 30, 2008); Pet. App. 7.

On January 5, 2009, petitioners moved for a prelimi

nary injunetion. After a hearing, the district court de-

nied the motion, concluding, among other things, that

petitioners lacked standing because they could not show

any concrete and particularized injury, and any injury

would not be redressed by an order against respondents.

See C.A. App. 62.

Petitioners did not appeal the denial of their motion

for a preliminary injunction, and President Obama’s

inauguration proceeded on January 20, 2009. Reverends

Warren and Lowery delivered an invocation and a bene

diction, respectively, and President Obama and Vice

President Biden both recited “so help me God” after

taking their oaths of office, as did the Chief Justice and

Justice Stevens in administering those oaths. See 155

Cong. Ree. S667-S669 (daily ed. Jan. 20, 2009).

After additional briefing, the district court dismissed

the complaint for lack of standing. Pet. App. 47-50. Al

though petitioners had moved to amend their complaint

to add allegations that the 2018 and 2017 inaugural cere

monies might improperly incorporate religious refer

ences, the court chose not to rule on the motion because

the court. believed that the amended complaint did not

contain any allegations that would establish standing.

See id. at. 49 n.22.'

»

3. The court of appeals affirmed the district court's

dismissal of the complaint. The court first held that peti

Lioners’ challenge to the 2009 inauguration was moot.”

Pet. App. 10-13. The court next heid that it would con

sider petitioners’ amended complaint, which included

challenges to the 2013 and 2017 inaugurations, because

“the motion for leave to amend should have been grant-

ed as of right.” /d. at 13-14 n.8. With respect to the fu

ture inaugurations, the court held, petitioners lack

standing. Assuming, without deciding, that petitioners

“claimed [an] injury [that] is an injury in fact and that it

can fairly be traced to the conduct of” respondents, the

court concluded that petitioners’ claims are not redress

able. /d. at 18-22. The court observed that petitioners

acknowledged that “[t]he inaugural ceremony is a pecu-

liar institution, the whole of which is subject to the Presi-

dent’s or President-elect’s discretion,” and that the con

tent of the inaugural ceremony—whether it. contains any

religious references or prayer—is entirely dependent on

the President’s or President-eleet’s wishes. /d. at 18.

The individuals and entities that petitioners had named

as defendants would participate in the inaugural pro-

l »)>

The reference to footnote “22” is a typographical error in the peti

Lion appendix. The reference should be to footnote “1.”

Petitioners do not challenge that determination before this Court

See Pet. 1.

ceedings only in the manner requested by the President,

the court explained, and they “possess no authority

statutory or otherwise—to actually decide whether fu

ture inaugural ceremonies will contain the offending

religious elements.” /d. at 17.

The court therefore emphasized that petitioners had

not sued the President or President-elect, and that. in

any event, a court would not have the authority to enter

an injunction directly against the President in the exer

cise of his executive functions or against the President

elect (a private citizen) in the exercise of his personal

religious beliefs. Pet. App. 20. The court coneluded that

“[t]he future President is * * * a ‘third party not be

fore the court’ whose ‘independent action’ results in the

alleged injury,” rendering any relief granted against

respondents ineffeetive in redressing petitioners’ al

leged injury. /d. at 19 (quoting Lajan v. Defenders of

Wildlife, 504 U.S. 555, 560 (1992); and citing Sammon v.

Kastern Ky. Welfare Rights Org., 426 U.S. 26, 41-42

(1976)).”

Judge Kavanaugh concurred in the judgment. In his

view, petitioners had standing because a declaration of

petitioners’ legal rights could form the basis of an in

junction against persons or entities who are selected to

assist with future inaugurations. See Pet. App. 27-28.

Judge Kavanaugh would have affirmed the dismissal of

the complaint on the ground that petitioners’ claims are

foreclosed by Marsh v. Chambers, 463 U.S. 783 (1983),

which upheld a state legislature’s practice of opening

legislative sessions with prayer. Judge Kavanaugh ex-

t

The district court also held that petitioners cannot sue unnamed

persons and entities that will support future inaugurations because that

would require the court to issue an “injunction against the world.” Pet

App. 17.

plained that the challenged religious elements in the

inauguration, like the legislative prayer at issue in

Marsh, are “deeply rooted in the Nation's history and

tradition,” Pet. App. 33, and are not used “to proselytize

or advance any one, or to disparage any other, faith or

belief,” 2d. at 32 (quoting Marsh, 463 U.S. at 794-795).

ARGUMENT

Petitioners contend (Pet. 4-15) that the court of ap

peals erred in concluding that. petitioners lack standing

because their claims regarding the 2013 and 2017 inau-

gurations are not redressable. Further review is not

warranted. The court of appeals’ decision is correct, and

it reflects the court’s fact-bound evaluation of the unique

arrangement by which the inaugural ceremony 1s orga-

nized and its content determined. The decision does not

conflict with any decision of this Court or any court of

appeals. Finally, even if petitioners had standing, re

view would not be warranted, because petitioners’ Fs

tablishment Clause claims lack merit.

1. “Article IIT of the Constitution limits the jurisdic

tion of federal courts to ‘Cases’ and ‘Controversies.’”

Lance v. Coffman, 549 U.S. 487, 489 (2007) (per curiam).

“One component of the case-or-controversy requirement

is standing, which requires a plaintiff to demonstrate the

now-familiar elements of injury in fact, causation, and

redressability.” /bid.; see Laan v. Defenders of Wild

life, 504 U.S. 555, 560-561 (1992). The plaintiff has the

burden to allege faets demonstrating standing, FW/PBS,

Ine. v. City of Dallas, 493 U.S. 215, 231 (1990), and the

standing inquiry is “especially rigorous” where, as here,

reaching the merits of the dispute would require a court

to decide whether an action taken by one of the other

two branches of the federal government is unconstitu

tional, see Haines v. Byrd, 521 U.S. 811, 819-820 (1997).

a. Applying settled principles of Article I11 standing

to the circumstances of this case, the court of appeals

concluded that petitioners failed to satisfy the redress-

ability component of Article III standing. That conelu-

sion does not warrant this Court’s review. Mere “spec

ulatif[on]” that an alleged injury will be redressed by a

favorable decision is insufficient to establish Article II]

standing; rather, a plaintiff must show that it is “hkely”

that granting the relief sought will alleviate the injury.

Lujan, 504 U.S. at 561 (quoting Simon v. Kastern Ky.

Welfare Rights Org., 426 U.S. 26, 38, 43 (1976)).

Petitioners challenge the constitutionality of the ref-

erences to God that may be made by the Chief Justice

and prayer leaders during future inauguration ceremo-

nies. Pet. App. 14-15. They have named as defendants

the Chief Justice, who administered the presidential

oath during the 2009 inaugural ceremony; the private

ministers who offered prayers in 2009; and the commit

tees created to assist in planning the 2009 ceremony. /d.

at 6. They seek an injunction preventing respondents

from uttering or facilitating the challenged references

in future inaugurations. /d. at 47-48, 49 n.22. As peti-

tioners acknowledge (Pet. 2), however, the President or

President-elect has complete discretion over the content

of his or her inaugural ceremony, and respondents “pos-

sess no authority—statutory or otherwise—to actually

decide whether future inaugural ceremonies will contain

the offending religious elements.” Pet. App. 17.

Because the content of the inaugural ceremony is

entirely dependent on the President or President-elect’s

wishes, only a judicial order running against the Presi-

dent or President-eleet would result in the relief that

S

petitioners seek. But petitioners have not filed suit

against the President or President-elect.’ Consequent-

ly, petitioners’ asserted injury results from “the inde-

pendent action of some third party not before the

Court.” Simon, 426 U.S. at 42. An injunction against

any of the respondents would not afford petitioners any

meaningful relief, and petitioners’ alleged injury is

therefore not redressable through a favorable result in

this ease.” See Pet. App. 17-18.

Petitioners argue (Pet. 4-7) that the court of appeals’

observation that if any injunction were entered against

respondents, the President or President-elect would

“simply find other willing assistants” to carry out his

wishes, Pet. App. 18, could “immunize from judicial re-

view an extraordinary array of executive branch ac-

tions,” Pet. 4, by permitting the President to disregard

injunctions against subordinate officials. To the con-

trary, the court of appeals’ decision does not purport to

establish any general rule regarding redressability in

the context of injunctions against subordinate Executive

In any event, as the court of appeals correctly held, a court would

not have the authority to enjoin the President in the performance of his

executive duties. See Pet. App. 20 (“A court—whether via injunctive or

declaratory relief—does not sit in judgment of a President's executive

decisions.”) (citing Mississipp? v. Johnson, 71 U.S. (4 Wall.) 475, 499

(1867)); Franklin v. Massachusetts, 505 U.S. 788, 802-803 (1992)

(plurality opinion). And as the court noted, petitioners “fail to cite any

authority allowing this court to declare unlawful the personal religious

expression of a private citizen like the President-elect.” Pet. App. 20.

Petitioners’ claim against the JCCIC, the AFIC, and their ehair

persons is not redressable for the additional reason that the JCCIC and

the AFIC were formed for the sole purpose of making the necessary

arrangements for the 2009 inauguration, e.g., S. Con. Res. 67, 110th

Cong., 2d Sess. (2008) (enacted), and they have now ceased to exist. See

Gov't C.A. Br. 38.

Q

Branch officials; indeed, the majority of the respondents

are not even part of the Executive Branch. Rather, the

court’s conclusion that the prospect of redressing peti-

tioners’ claims through an order against respondents is

“speculative,” Svmon, 426 U.S. at 43-44, reflects only its

fact-bound evaluation of the “peculiar institution” of the

inaugural ceremony and the likelihood that a judicial

order against respondents could provide relief in view of

the complete authority the President or President-elect

exercises over the ceremony’s content and participants.

Pet. App. 18. For purposes of future ceremonies, the

President or President-elect will have complete discre-

tion over whether to have a ceremony at all, what re-

sponsibilities (if any) to give the committees, which indi-

viduals to invite to participate in the ceremony, and—

most importantly—what content to request of the par-

ticipants." See ibid. In such a situation, the court of

appeals reasonably concluded, if some potential partici-

pants were subject to an injunction limiting their ability

to take part, the President or President-elect would ex-

ercise his authority over the content of the ceremony by

choosing individuals who are able to participate in the

Y

For this reason, Lee v. Weisman, 505 U.S. 577, 586 (1992), on which

Judge Kavanaugh would have relied to find petitioners’ claims redress-

able, Pet. App. 27, is distinguishable. In Lee, the Court adjudicated an

Establishment Clause suit against school officials who “direct{ed] the

performance of a formal religious exercise,” 505 U.S. at 586, and who

were responsible for deciding whether to invite clergy to deliver

invocations and benedictions at high school graduation ceremonies. See

td. at 580-581 (noting that school district policy permitted, but did not

require, school principals to invite clergy to deliver prayers at gradua

tion ceremonies). Thus, injunctive relief against the named defendants

in Lee redressed the plaintiffs’ claims.

10

manner that he wishes.’ See id. at 18-19; see, e.g., Glo-

ver River Org. v. United States Dept of the Interior, 675

F.2d 251, 254-256 (10th Cir. 1982) (finding injury not

redressable because the requested order would not re-

quire the President to fund the projects in which the

plaintiff was interested).

This case is thus distinguishable from the decisions

on which petitioners rely. In Franklin v. Massachu-

setts, 505 U.S. 788 (1992), the plaintiffs challenged the

method employed by the Secretary of Commerce in ¢al-

culating the decennial census. Although the requested

injunction requiring the Secretary to conduct the census

in a certain manner would have redressed the alleged

harm only if the President, in exercising his statutory

duty to transmit to Congress a statement of the number

of representatives to which each State would be entitled

under the census, chose to abide by the Secretary’s con-

clusions, a plurality of the Court concluded that “it is

substantially likely” that the President “would abide by

[the court’s] authoritative interpretaticn of the census

" Judge Kavanaugh argued that the possibility that respondents’

responsibilities might be transferred to others does not affect redress-

ability because “‘a declaration of the |petitioners’] legal right

could form the basis of an injunction’ against the entity to which [a

named defendant’s] responsibilities are transferred.” Pet. App. 27

(citation omitted). The decision on which Judge Kavanaugh relied con-

cerned a claim that became moot with respect to certain defendants

because they ceased to exist, but that still could have been redressed by

other existing named defendants. See Center for Arms Control & Non-

Prolvferation v. Pray, 531 F.3d 836, 888-839 & n.* (D.C. Cir. 2008).

Here, in contrast, petitioners’ claim is not redressable by any of the

named defendants. Nor may petitioners use this suit to obtain, as the

court of appeals correctly held and petitioners do not contest (Pet. 4 &

n.6), an injunction against all unknown “persons the future President

could possibly invite” to participate. Pet. App. 16-17.

1]

statute * * * even though [he] would not be directly

bound by such a determination.” Jd. at 803. That con-

clusion was based on the fact that “the Commerce Secre-

tary was legally responsible for providing the President

with advice and information on which he would base his

final decision,” Pet. App. 21, making it reasonably likely

that a favorable judgment would influence the Presi-

dent’s conduct. See Franklin, 505 U.S. at 803. Here, in

contrast, there is no such advisory relationship between

respondents and the President or President-elect, and

the President alone has the discretion to determine the

content of the ceremony.

Petitioners also rely (Pet. 5, 7) on Swan v. Clinton,

100 F.3d 973 (D.C. Cir. 1996), and Made in the USA

Foundation v. United States, 242 F.3d 1300 (11th Cir.),

cert. denied, 534 U.S. 1039 (2001), but both decisions are

inapposite. In both cases, the court acknowledged that

there are occasions on which only injunctive relief

against the President himself would address the plain-

tiff’s injury, but held that given the statutory and regu-

latory frameworks at issue, the defendant officials had

sufficient statutory authority so that an injunction gov-

erning their performance of their official duties would

likely provide the plaintiffs with “partial relief” even

though the President would not be bound to comply with

the order. Swan, 100 F.3d at 979-981; see Made in the

USA Found., 242 F.3d at 1310-1311. That is not the

case here, where respondents possess no authority other

than to carry out the President’s or President-elect’s

wishes.®

* Petitioners suggest (see Pet. 3) that their claims against respon-

dents must be redressable because there must be a remedy for alleged

violations of the Establishment Clause that take place during the

inaugural ceremony. But as this Court has explained, “(t]he assump-

12

b. Even if petitioners could satisfy the Article Lil

requirement of redressability, the other elements of

standing also are not present. For the reasons stated

above, petitioners cannot establish that any injury-in-

fact arising out of future inauguration ceremonies is

fairly traceable to the individuals and entities named as

defendants. Because only the President or President-

elect can be said to have caused any injury petitioners

might suffer, here causation and redressability overlap

as “two sides of [the same] coin.” Dynalantic Corp. v.

Department of Def., 115 F.8d 1012, 1017 (D.C. Cir.

1997); see Stmon, 426 U.S. at 48-44. In addition, as the

district court concluded, see Pet. App. 49-50, petitioners

cannot identify any concrete and particularized injury

arising from the possibility that prayer and the phrase

“so help me God” will appear in future inaugurations.

See generally Lujan, 504 U.S. at 560, 564 n.2; Valley

Forge Christian Coll. v. Americans United for Separa-

tion of Church & State, 454 U.S. 464, 482-483 (1982); see

also Newdow v. Bush, 89 Fed. Appx. 624, 625 (9th Cir.

2004) (unpublished) (holding that plaintiff lacked stand-

ing to challenge inclusion of clergy prayers at the 2001

inauguration because he did “not allege a sufficiently

concrete and specific injury”).

2. Further review is also unwarranted because, as

Judge Kavanaugh explained in his opinion concurring in

the judgment, even if petitioners had standing, their

Establishment Clause challenge is without merit.

In Marsh v. Chambers, 463 U.S. 783 (1983), the

Court upheld the practice of opening state legislative

tion that if [one party has] no standing to sue, no one would have

standing, is nota reason to find standing.” Valley Forge Christian Coll.

v. Americans United for Separation of Church & State, 454 U.S. 464,

489 (1982) (first set of brackets in original; citation omitted).

13

sessions with prayer because that practice was “deeply

embedded in the history and tradition of this country,”

id. at 786, and because the prayers “had [not] been ex-

ploited to proselytize or advance any one, or to dispar

age any other, faith or belief.” Jd. at 794-795.

The practice of asking clergy to deliver inaugural

prayers and using the words “so help me God” after the

President’s oath of office is consistent with the Estab-

lishment Clause for the same reasons. Both the use of

the phrase “so help me God” and the inclusion of prayer

in the inaugural ceremony are longstanding traditions

dating back to the nation’s founding. “The First Con-

gress—the same Congress that drafted and approved

the First Amendment—mandated ‘so help me God’ in

the oaths of office for federal judges,” and “[s]tate con-

stitutions in effect at the ratification of the First Amend-

ment similarly included ‘so help me God’ in state offi-

cials’ oaths of office.” Pet. App. 33 (Kavanaugh, J., con-

curring in the judgment); see Lynch v. Donnelly, 465

U.S. 668, 674 (1984) (noting the “special significance” of

the “interpretation of the Establishment Clause b-

* * * the First Congress”); see also Pet. App. 54

(Kavanaugh, J., concurring in the judgment) (noting

that the words “so help me God” “remain to this day a

part of oaths prescribed by law at the federal and state

levels”). Likewise, formal prayers “‘have been associ-

ated with presidential inaugurations since the inaugura-

tion of George Washington.’” /d. at 36 (Kavanaugh, J.,

concurring in the judgment) (citation omitted); Gov’t

(.A. Br. 42-46 (discussing historical instances of inaugu-

ral prayers).

In addition, neither the use of the words “so help me

God” nor the practice of clergy prayers at presidential

inaugurations has been exploited to advance any one, or

14

disparage any other, religious belief. See Marsh, 463

U.S. at 794-795; Pet. App. 37-39 (Kavanaugh, J., concur-

ring in the judgment). The words “so help me God,”

similar to other phrases that this Court has approved in

other ceremonial contexts,” are not sectarian or prosely-

tizing, and the religious references that have appeared

in inaugural prayers have reflected the kinds of

nonsectarian sentiments that this Court approved of in

Marsh. See Lynch, 465 U.S. at 677-678 (describing nu-

merous “expressions of religious belief” in civic life, and

observing that such expressions are consistent with “ac-

commodation of all faiths and all forms of religious ex-

pression”); Pet. App. 38-40 (Kavanaugh, J., concurring

in the judgment).

’ See, e.g., Zorach v. Clauson, 343 U.S. 306, 313 (1952) (approving the

phrase “God save the United States and this Honorable Court” with

which this Court opens each of its sessions); Lynch, 465 U.S. at 676

(approvingly describing the use of “In God We Trust” in the National

Motto and on coins and currency and the phrase “One nation under

God” in the Pledge of Allegiance). Accordingly, “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.” Pet. App. 34-35 (Kavanaugh, J., concurring in the

judgment) (citing, e.g., School Dist. v. Schempp, 374 U.S. 203, 212-213

(1963), and Zorach, 343 U.S. at 312-313).

CONCLUSION

‘ne petivtio! for a writ of certiorari should be de

ne pectfully ubmitted

Al. KUMAR KATYA

Acting Solicitor Gene

IN Y WE I

Assistant Attorney

VIARK STERN

OWELL V.S1

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