SAN FRANCISCO - A federal appeals court dismissed a lawsuit Monday brought by Michael Newdow, the atheist who convinced the same court that the Pledge of Allegiance was unconstitutional when recited in public schools.
In Newdow's latest legal action, however, the San Francisco-based 9th U.S. Circuit Court of Appeals declared as "futile" his lawsuit seeking to abolish clergy-led prayer at presidential inaugurations.
In an eight-sentence order, a three-judge panel ruled that Newdow, who will argue the pledge case to the U.S. Supreme Court next month, did not suffer "a sufficiently concrete and specific injury." The court added that he could not revive his lawsuit in the lower courts "because amendment would be futile."
Newdow, who is an emergency room physician and an attorney, is representing himself in both the inauguration and pledge disputes. He will argue to the Supreme Court that the pledge is unconstitutional when recited in public schools because it contains the words "under God."
In June 2002, a three-judge panel of the 9th Circuit agreed with him, and the Supreme Court decided to review the decision.
Newdow said Monday that he was unsure whether he would ask the Supreme Court to hear his latest challenge, an assertion that clergy-led prayer in presidential inaugurations is also an unconstitutional endorsement of religion. "I got other things on my mind at the moment," Newdow quipped, referring to the pledge case.
Whether Newdow has standing in the pledge case is also a point of disagreement. The Sacramento man brought that challenge on behalf of his daughter - now 9 and a fourth-grader - claiming she was wrongly being exposed to religion in public school.
In the inauguration case, Newdow claimed that, among other things, the Rev. Franklin Graham's prayer at President Bush's 2001 inauguration was an unconstitutional endorsement of religion. The practice of clergy-led prayer at presidential inaugurations began with Franklin D. Roosevelt in 1937, Newdow said.
Graham ended his prayer at Bush's inauguration by saying: "May this be the beginning of a new dawn for America as we humble ourselves before you and acknowledge you alone as our Lord, as Savior and our Redeemer. We pray this in the name of the Father, and of the Son, the Lord Jesus Christ, and of the Holy Spirit. Amen."
The inauguration case is Newdow v. Bush, 02-16327.