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Newdow’s Case Against Chaplains Dismissed

U.S. District Judge Henry Kennedy Jr. on Wednesday dismissed a suit brought by atheist activist Michael Newdow against the House and Senate chaplains, stating Newdow’s claim that he was injured by his observations of the Senate chaplain’s prayer was “insufficient.”

The decision coincided with Newdow’s appearance before the Supreme Court in an unrelated high-profile case Wednesday.

Newdow argued that his 9-year-old daughter’s recitation of the Pledge of Allegiance, including the uttering “under God,” violates the constitutional separation of church and state. He is an ordained minister affiliated with the Universal Life Church and founder of the First Amendmist Church of True Science who denies the existence of any supreme being.

In his suit against the chaplains, Newdow claimed that during an April 11, 2003, visit to the Senate, a guest chaplain used the phrase “Our God,” causing him injury because he is an atheist. But Kennedy noted that “general emotional harm, no matter how deeply felt, cannot suffice for injury-in-fact for standing purposes.”

Moreover, Kennedy noted that Newdow resides in California and Congressional prayers are not part of his regular routine. In cases where standing is based on direct exposure to an offensive religious display or activity, “there is usually a personal connection between the plaintiff” and the offensive display.

Newdow’s additional claim that he suffered employment injury because he applied for Senate and House chaplain positions, but won’t be considered because he is an atheist, was also rejected.

“First the court notes that Newdow’s attempt to assert standing on the basis of this employment injury inherently contradicts the basis of his suit, in which he seeks a declaration that the Senate and House chaplaincies and the practice of daily opening prayers are unconstitutional, and that the House and Senate should be prohibited from spending taxpayer funds to support such offices,” Kennedy wrote.

He added, “in light of Newdow’s belief that the practice of legislative chaplains violates the Constitution, he cannot also claim that he suffered injury to a legally cognizable interest when he was not selected to be Senate or House chaplain.”

The judge rejected further claims made by Newdow, including his assertion that he suffered a “personal reproach” when former Senate Chaplain Lloyd Ogilvie declared the Senate’s “convictions in the Pledge” of Allegiance.

“Newdow claims that because the litigation involving the Pledge of Allegiance is ongoing, ‘it is likely that more developments will arise, after which the chaplains will see fit to offer more of their disrespectful comments,’” Kennedy noted, but said that “threat of future stigmatic injury” was too speculative in nature.

Kennedy also emphasized in his court order dismissing the case that controlling precedent has rejected Newdow’s claim that his taxpayer rights are violated by Congress’ payment of legislative chaplain salaries.

According to the judge, “Congress’s power to pay these salaries does not arise from its power to tax and spend. Instead, the United States contends that Congress’s power to pay chaplains’ salaries derives from the power of each house to choose its officers.”

Kennedy also cited extensively the 1983 Supreme Court case Marsh v. Chambers, in which the court upheld the Nebraska Legislature’s practice of beginning each session with a prayer by a chaplain paid by the state.

“The Court found that the Framers’ intent [in the Constitution] and the ‘unambiguous and unbroken history of more than 200 years’ supported its conclusion that the practice of opening legislative sessions with prayer was constitutional.”

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