When Barack Obama was elected, he invited two private ministers, the Revs. Rick Warren and Joseph Lowery, to lead prayers at the inaugural ceremony. He also asked Chief Justice John Roberts to use the phrase "so help me God" after reciting the presidential oath of office.

This prompted a lawsuit from a group of atheists, who complained the prayers and oath violated the clause in the First Amendment that bars government from establishing a religion. The case ended up in the U.S. Court of Appeals for the District of Columbia Circuit in 2010, before Judge Brett Kavanaugh, who is now a nominee for the U.S. Supreme Court.

The court affirmed dismissal of the case, saying the plaintiffs lacked standing. Judge Kavanaugh agreed with the decision, but not for lack of standing. Instead, he concluded that such religious references in government traditions do not violate the First Amendment. Below is an excerpt of his concurring opinion.

The First Amendment to the U.S. Constitution provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." The Supreme Court has interpreted that elusive text on many occasions. The question here is whether the presidential oath and inaugural prayers contravene the relevant Supreme Court precedents.

In analyzing the Establishment Clause issues in this case, I begin with several background principles.

First is an obvious point, but one worth emphasizing. In our constitutional tradition, all citizens are equally American, no matter what God they worship or if they worship no god at all. Plaintiffs are atheists. As atheists, they have no lesser rights or status as Americans or under the U.S. Constitution than Protestants, Jews, Mormons, Muslims, Hindus, Buddhists, Catholics, or members of any religious group.

Second, in deciding this case, we cannot gloss over or wish away the religious significance of the challenged inaugural prayers. The fact that religious words are common to many faiths — or are used repeatedly — does not diminish their religious meaning. Neither the numbing effect of repetition nor the brevity of a prayer extinguishes the religious nature of words such as "help me God."

Third, and relatedly, we cannot resolve this case by discounting the sense of anguish and outrage plaintiffs and some other Americans feel at listening to a government-sponsored religious prayer. Any effort to tell plaintiffs that "it's not a big deal" or "it's de minimis" would be entirely out of bounds, in my judgment. Plaintiffs' beliefs and sincere objections warrant our respect.

Fourth, at the same time, we likewise cannot dismiss the desire of others in America to publicly ask for God's blessing on certain government activities and to publicly seek God's guidance for certain government officials. Plaintiffs suggest that no one should be upset if government ceremonies were entirely cleansed of religious expression; they argue that such a regime would reflect true government "neutrality" toward religion. Others respond, however, that stripping government ceremonies of any references to God or religious expression would reflect unwarranted hostility to religion and would, in effect, "establish" atheism.

With that background in mind, I turn to the Establishment Clause analysis of the presidential oath and inaugural prayers. To begin, the Supreme Court's Establishment Clause jurisprudence does not set forth a one-size-fits-all test. Rather, the court ordinarily analyzes cases under various issue-specific rules and standards it has devised.

This case concerns government-sponsored religious speech at public events outside of the public school setting. The Supreme Court's landmark ruling in Marsh vs. Chambers sets forth the court's approach to that issue. The court upheld a state legislature's practice of beginning each session with prayer by a state-paid chaplain. The court reasoned that the practice of opening legislative sessions with prayer was "deeply embedded in the history and tradition of this country." Since the Founding, the "practice of legislative prayer has coexisted with the principles of disestablishment and religious freedom." The practice is "part of the fabric of our society" such that the invocation of God was "not, in these circumstances, an `establishment' of religion ... [but] simply a tolerable acknowledgment of beliefs widely held among the people of this country."

As to the permissible content of the legislative prayers, the Marsh court articulated a somewhat ambiguous standard: "The content of the prayer is not of concern to judges where, as here, there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief. That being so, it is not for us to embark on a sensitive evaluation or to parse the content of a particular prayer."

The Supreme Court's holding in Marsh — allowing government-sponsored religious speech or prayer at a public event where prayers have traditionally occurred, at least so long as the prayers are not proselytizing (seeking to convert) or otherwise exploitative — does not satisfy all Americans. No holding on this issue would in our pluralistic society. But the precedent has endured, and as a lower court we must follow and apply it in this case.

Like the legislative prayer in Marsh, the words "so help me God" in the presidential oath are not proselytizing or otherwise exploitative. Moreover, like the practice of legislative prayer, use of "so help me God" in oaths for government officials is deeply rooted in the nation's history and tradition. By many accounts, George Washington said "so help me God" when he took the first presidential oath in New York on April 30, 1789. The First Congress — the same Congress that drafted and approved the First Amendment — mandated "so help me God" in the oaths of office for federal judges. The words "so help me God" remain to this day a part of oaths prescribed by law at the federal and state levels.

In light of that extensive historical record and the non-proselytizing, non-exploitative nature of the oath, 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. Under Marsh and other Supreme Court precedents, the Establishment Clause permits "so help me God" in the official presidential oath.

Plaintiffs' challenge to the traditional inaugural prayers (usually consisting of an invocation and benediction) also fails. Those prayers closely resemble the legislative prayers upheld by the Supreme Court in Marsh.

Like legislative prayers, prayers at presidential inaugural ceremonies are deeply rooted in American history and tradition. During the first inauguration, the new president, vice president, and members of Congress, in accordance with a resolution passed by the First Congress, "proceeded to St. Paul's Chapel, where divine service was performed" by the Senate chaplain, according to the Annals of Congress. "It is to be noted that this was not a service provided by an Episcopal church to which senators and representatives were invited, but an official service carefully arranged for by both houses of Congress and conducted by their duly elected chaplain," according to Anson Phelps Stokes in his book Church and State in the United States. Inaugural prayers were conducted by the Senate chaplain in the Senate chambers until 1937; since then, the prayers typically have taken place on the inaugural platform at the Capitol grounds.

To be sure, unlike Marsh, this case involves the executive, not the legislature. But there is no persuasive reason why opening every "executive session" with prayer would raise more of an Establishment Clause problem than opening every "legislative session" with prayer.

Having established that inaugural prayers are permissible in concept, we confront a distinct and delicate question regarding the precise content of the prayers. Recall that Marsh stated that "[t]he content of the prayer is not of concern to judges where, as here, there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief. That being so, it is not for us to embark on a sensitive evaluation or to parse the content of a particular prayer."

Under Marsh, we know that proselytizing prayers — that is, those that seek to convert — are problematic. Inaugural prayers traditionally have not crossed that boundary.

But what about sectarian references — that is, prayers associated only with particular faiths, or references to deities, persons, precepts, or words associated only with particular faiths? (References such as God and Lord are generally considered non-sectarian for these purposes.) Does a sectarian reference mean for purposes of Marsh that the "prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief"? If so, the presidential inaugural prayers might pose a problem because they have included sectarian references. For example, the prayers at the 2009 inauguration contained a reference to Jesus, a recitation of a protestant version of the "Our Father," and a quotation from the Shema, an important prayer in Judaism.

Marsh indicates, however, that the Establishment Clause does not ban any and all sectarian references in prayers at public ceremonies. Some of the prayers at issue in Marsh itself were Christian, and others were in the Judeo-Christian tradition.

The more nuanced issue, therefore, is how courts should distinguish permissible sectarian references from impermissible sectarian references in determining under Marsh whether a "prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief." As Judge William Pryor explained in his thoughtful opinion for the 11th Circuit, courts must approach that difficult task with sensitivity lest they become "ecclesiastical arbiter[s]." In that regard, the en banc 10th Circuit's formulation is instructive: "the kind of prayer that will run afoul of the Constitution is one that proselytizes a particular religious tenet or belief, or that aggressively advocates a specific religious creed, or that derogates another religious faith or doctrine." Under Marsh, therefore, sectarian references alone typically do not render a prayer impermissible. But at some point sectarian references can become so overwhelming and one-sided that the prayer opportunity can be said to have been "exploited" to "advance any one, or to disparage any other, faith or belief." That is particularly true when other factors suggest exploitation of the prayer opportunity.

Review of the modern inaugural prayers yields no indication that this admittedly imprecise Marsh principle is being breached. Inaugural prayers are traditionally inclusive and largely non-sectarian. They typically include many references to God, Lord, and the like, which are considered non-sectarian for these purposes. The sectarian references in inaugural prayers tend to be limited in number, as was the case at the 2009 inauguration.

Applying Marsh and the other relevant Supreme Court precedents, I would hold that both "so help me God" in the presidential oath and the prayers at the presidential inauguration do not violate the Establishment Clause.

This column was edited and condensed by Dallas Morning News assistant editorial page editor Elizabeth Souder.

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