Newdow essentially conceded as much at hearing when he agreed with the court that the President himself could say what he wished at his inauguration, or that members of Congress could employ whatever religious reference on the floors of Congress that they desired without any court being able to control that speech. Newdow's belief, however, that non-governmental clergymen who make specific Christian references acting as proxies for the President present a different situation, is erroneous. To have any applicability here, where the President has been sued as the only defendant, Newdow must assert that the President is actually controlling what is said at his inauguration- not that the participants are, as the President's counsel has posited through the Graham declaration, independent of all control in the substance of their invocations. The point here is that even if Newdow attempted to contest the President's "independent speaker" fact (which he has not), and prevailed on the control issue, the courts would not have the authority to enjoin the controlling President.5
In sum, the Judiciary's star shines brightly when the Judiciary recognizes its limitations in a government founded upon separation of powers and mutual respect of its different branches. In a government where the several branches respect the rights of each other to function free of interference in their inherent functions, the Judiciary will not attempt to dictate what the President may, or may not, say at his inauguration, or what selected persons may say on his behalf. There is nothing extraordinary from a Constitutional perspective about a Presidential inauguration
^f indeed, the President had no express or implicit control over his own inauguration ceremonies, a doubtful proposition, the President's cited case of Adier v. Duval County School Board. 250 F.3d 1330 (11th Cir. 2001) (en bane) might be instructive. In Adier. the court found that an elected student's speech, not controlled by the school authorities, could not give rise to a First Amendment violation. However, rather than start the discovery battles over whether the President exercised any control over his inauguration, and the extent to which he did so, the court believes the more correct way to resolve the instant suit is on the point of law expressed above. Moreover, Adier conflicts with the Ninth Circuit decision in Cole v. Oroville Union High School Djst.. 228 F.3d 1092, 1102-03 (9th Cir. 2000) (holding that the school officials were in control over an elected student's graduation invocation speech since the school district supplied the means by which the speech could be made.
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