inauguration, and also seeks to enjoin the President, in his official capacity, from engaging in future "similar" acts. Newdow does not seek damages.
After hearing on the President's initial motion to dismiss, the undersigned found that Newdow had standing to challenge the statement of prayers per se at the inauguration. "Electronic" attendance was found to be the same for standing purposes as physical attendance. Newdow's alleged First Amendment injury was sufficiently pled for him to proceed, and the court found that an injunctive remedy directed at prayer in general would be feasible if otherwise warranted. However, the undersigned further found that presidential invocations to the Deity, i.e., prayers, at inaugurations were historical and commonplace. As such, the prayers in general did not offend the Establishment Clause ofthe First Amendmentto the Constitution. See Marsh v. Chambers, 463 U.S. 783,103 S.Ct. 3330 (1983). Because the complaint, liberally read, also attacked the content ofthe prayer, the further standing and merits problems involved in such a prayer specific attack were noted, as well as problems in the defense ofthe attack. Since no party had briefed the issues relating to a prayer specific attack, the undersigned deferred further findings pending such briefing. The Honorable Lawrence K. Karlton adopted the findings and recommendations in full in his order of September 28,2001.
The President has now brought a motion for summary judgment arguing that the case should be dismissed in its entirety. Newdow has brought a cross-motion for summary judgment. Hearing was held on the motions on December 20, 2001. After full consideration ofthe issues, the court finds and recommends that the entire case should be dismissed for lack of jurisdiction. In the alternative, judgment should be entered on behalf of the President insofar as inaugural prayers in general are at issue; any attack on the content ofthe prayer should be dismissed for lack of standing. Issues
The President again attacks Newdow's standing to bring this lawsuit. However, the court notes another threshold jurisdictionai issue - that is, the inability ofthe courts to enjoin the President at all. The President also argues the case on the merits insofar as he claims that the prayers
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