# Opposition Brief — Newdow v. Roberts > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2847%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 2011 - **Citation:** 563 U.S. 1001 ## Text 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 ig yy) --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2847%3A3. Public record. Not legal advice.