Writing for the majority, Judge Janice Rogers Brown found that the plaintiffs lack standing and that the matter is moot. Brown, joined by Judge Douglas Ginsburg, further determined that the current lawsuit is not the proper vehicle to provide declaratory relief for future inaugurations. Writing separately, Judge Bret Kavanaugh, concurred in the judgment but disagreed with the position that the atheist plaintiffs lack standing or that declaratory relief is not available. Instead Kavanaugh reached the merits of the case finding that longstanding practices involving inaugural prayer do not violate the Establishment Clause. In like manner, the use of “so help me God” in oaths taken by government officials is “deeply rooted in the Nation’s history and tradition,” Kavanaugh wrote. Kavanaugh also took the unusual step to explain his vote in the Court’s prior ruling to deny the emergency motion filed by the plaintiffs to have the Court Clerk dispense with the supplication – “God save the United States and this honorable Court.” Citing Supreme Court dicta, Kavanaugh stated that the opening court cry is the “quintessential example of a permissible religious reference” in a government setting.
In addition to representing Drs. Lowery and Warren, PJI attorneys handled the filing of the opposition to the motion seeking to halt the clerk’s opening proclamation. “We are pleased that the motion was not only denied, but that one of the judges explained his vote which essentially adopted the argument and cases put forward by PJI,” said chief counsel Kevin Snider, who filed the opposition to the motion. “We are seeing a very aggressive legal strategy by Michael Newdow and the Freedom From Religion Foundation in challenging any semblance of government acknowledgement of religion,” stated Brad Dacus, president of PJI. “Because of this, we are committed to continue to go head to head with them in court,” Dacus continued.