Newdow Asks DC Circuit To Eliminate Opening Cry Before His Case Is Heard

The U.S. Court of Appeals for the D.C. Circuit is scheduled to hear oral arguments on Dec. 15 in Newdow v. Roberts, a case which challenged the use of "so help me God" in the oath administered by Chief Justice John Roberts in swearing in President Barack Obama. It also challenged the practice of having clergy deliver an invocation and benediction at the inaugural. On the day of the inauguration, a D.C. federal district court denied a preliminary injunction. (See prior posting.) Yesterday, plaintiff Michael Newdow filed an interesting "Emergency Motion" asking the D.C. Circuit to dispense with the court's usual opening cry-- "God save the United States and this Honorable Court" prior to appellate arguments in the case. (Full text of motion and memorandum in support.) The motion argues:

Appearances are also critical for the judges themselves.... In other words, "federal judges must maintain the appearance of impartiality."... Although perhaps not as flagrant a violation of the Establishment Clause as those violations which underlie this litigation ... the religious opening cry is definitely of a similar species. Inasmuch as the Panel, at this stage of the proceedings, must assume the merits in Plaintiffs' favor, ... the appearance of impartiality is certainly questionable at best when the judges risk independently inflicting what may be yet one more "concrete and particular" injury to the First Amendment rights of those seeking their protection.

[Thanks to Bob Ritter for the lead.]

UPDATE: On Wednesday (12/9), in a one sentence order, a 3-judge panel rejected Newdow's request. (Blog of the Legal Times.) [Thanks to Joel Sogol via Religionlaw for the lead.]