Full opinion text
MEMORANDUM OPINION BATES, District Judge. This case draws this Court into the murky waters of the law relating to the Establishment Clause of the First Amendment. Plaintiff Michael Newdow, a well-known atheist litigant, challenges the inclusion of prayers by invited clergy — in the form of an invocation and benediction — at the upcoming Presidential Inauguration scheduled to occur on January 20, 2005. He seeks a declaratory judgment and preliminary injunction to prohibit a practice that has existed for almost seventy years through invited clergy, and that arguably can be traced back to the Inauguration of President George Washington in 1789. Newdow’s present challenge poses complex First Amendment questions relating to one of this nation’s most significant public events. But in addition to such weighty Establishment Clause questions, the case raises substantial issue preclusion and standing questions that require this Court to proceed cautiously, particularly given Newdow’s prior litigation involving the very same subject matter and the present context of a request for expedited consideration of a motion seeking the extraordinary relief of enjoining the President. The Court is therefore mindful of the guidance expressed by the Supreme Court just last year in another case brought by Newdow challenging the inclusion of the words “under God” in the Pledge of Allegiance: The command to guard jealously and exercise rarely our power to make constitutional pronouncements requires strictest adherence when matters of great national significance are at stake. Even in cases coneededly within our jurisdiction under Article III, we abide by “a series of rules under which [we have] avoided passing upon a large part of all the constitutional questions pressed upon [us] for decision.” Elk Grove Unified School District v. Newdow, 542 U.S. 1, 124 S.Ct. 2301, 2308, 159 L.Ed.2d 98 (2004) (modifications in original) (quoting Ashwander v. TVA, 297 U.S. 288, 346, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandéis, J., concurring)). Taking careful account of two such rules — issue preclusion and standing — as well as Newdow’s First Amendment claims, the Court concludes that the extraordinary preliminary injunctive relief Newdow seeks must be denied. BACKGROUND I. Newdow’s Prior Challenge to Inaugural Prager A few days after the 2001 Inauguration, Newdow challenged the use of inaugural prayers. See Newdow v. Bush, No. CIV S-01-218 (E.D.Cal.). Having watched the Inauguration on television, he contended that the prayer delivered was “a religious act per se” and “was clearly sectarian as well.” 2001 Compl. ¶¶ 12-13. Newdow asserted that [t]he effect of the [clergy’s] purely religious words was for Christian Americans to perceive them as an endorsement of their Christianity, and for non-Christian Americans including plaintiff to perceive the Pledge [sic] as a disapproval of their non-Christianity. Id. ¶ 29. He further alleged that because of such “religious activity,” he “was made to feel as an ‘outsider.’ ” Id. ¶ 30. New-dow sought both a declaration that President Bush had violated the Establishment Clause by utilizing a clergyman in the 2001 Inauguration, and a permanent injunction barring President Bush “from repeating this or engaging in any similar religious acts.” Id. at 7. In response to President Bush’s motion to dismiss, the Magistrate Judge issued findings and recommendations concluding that Newdow had Article III standing to bring his action, but recommending that the action be dismissed to the extent it challenged “permitting a chaplain (or the President) from making any prayer at the Presidential Inauguration.” Newdow I (Magistrate Judge, July 17, 2001), at 12. The Magistrate Judge noted the long history of Christian prayers and reverent references at Presidential inaugurations, and concluded that the framers did not view such inaugural prayers as violative of the Establishment Clause. Id. at 8-9. Because the parties had not specifically addressed Newdow’s challenge to the content of the prayers at the 2001 Inauguration, the Magistrate Judge recommended against dismissal of that claim. Id. at 10, 12. After objections from both Newdow and President Bush, the District Court adopted the Magistrate Judge’s findings and recommendations in full. Newdow I (District Court, Sept. 28, 2001 Order). Accordingly, although the action was dismissed to the extent it sought to prevent the President or a chaplain from saying a prayer at a future inauguration, the entire case was not dismissed. President Bush then moved to dismiss the remaining claim relating to the specific content of the 2001 Inauguration prayers. The Magistrate Judge then suggested that because courts cannot enjoin the President in the circumstances Newdow presented, the entire case should be dismissed. Newdow I (Magistrate Judge, Dec. 28, 2001), at 13. The Magistrate Judge concluded both that the courts lack constitutional authority to regulate the Presidential inauguration or what the President or his speakers said, and alternatively, that there was no Establishment Clause violation and Newdow did not have standing to challenge the content of future inaugural prayers. Id. at 7, 13. After Newdow filed objections together with a motion to amend his complaint in order to assert claims against Senator Mitch McConnell (as chair of the Joint Congressional Committee on Inaugural Ceremonies), the Magistrate Judge issued final findings and recommendations suggesting that the motion be denied because the court would lack constitutional authority to regulate Congressional participation in a Presidential inauguration just as it could not regulate what the President or others said at an inauguration. Newdow I (Magistrate Judge, Mar. 26, 2002), at 6. The Magistrate Judge also observed, that suing Senator McConnell did not give Newdow any greater standing to challenge the content of a prayer, and a federal court could not enjoin the President, a senator or any other government official with regard to what was said at a Presidential inauguration. Id. at 6-7. The Magistrate Judge therefore resubmitted his December 28, 2001 findings and recommendations, with supplementation, because adding Senator McConnell or anyone else would not alter the recommendation in favor of dismissal. The District Court adopted the findings and recommendations and dismissed Newdow’s ease in its entirety. Newdow I (District Court, May 23, 2002 Order), at 2. The Ninth Circuit affirmed the judgment of the district court dismissing Newdow’s action. Newdow v. Bush, 89 Fed.Appx. 624, 625 (9th Cir. Feb.17, 2004). That court characterized Newdow’s case as “alleging that the inclusion of clergy-led prayer at a presidential inauguration is unconstitutional in general, and that the prayer offered ... at the 2001 Inauguration of President Bush was unconstitutional in particular.” Id. After noting that it had jurisdiction and could affirm on any appropriate ground, the court stated the entirety of its ruling: Newdow lacks standing to bring this action because he does not allege a sufficiently concrete and specific injury. See Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 482-86, 102 S.Ct. 752, 70 L.Ed.2d 700 ... (1982). The district court did not abuse its discretion in denying Newdow’s motion to file an amended complaint because amendment would be futile. See Schmier v. U.S.Ct. of Appeals for the Ninth Circuit, 279 F.3d 817, 824 (9th Cir.2002). Id. Newdow did not seek any further review of the Ninth Circuit’s decision. II. Newdow’s Current Challenge President Bush will be sworn in for his second term as the 43rd President at the January 20, 2005 Inauguration. The Joint Congressional Committee on Inaugural Ceremonies (“JCCIC”) has been authorized to make all the necessary arrangements for the inauguration of President Bush and Vice President Cheney. See Senate Concurrent Resolutions 93 and 94, 150 Cong. Rec. S1695 (Feb. 26, 2004), 150 Cong. Rec. H1081-82 (Mar. 16, 2004); S. Con. Res. 2, 109th Cong., reprinted in 151 Cong. Rec. S7 (daily ed. Jan. 4, 2005). The chair of the JCCIC is Senator Trent Lott. President Bush has appointed a private organization, the Presidential Inaugural Committee (“PIC”), to coordinate the ceremonial events connected with the inauguration. See 36 U.S.C. § 501. On December 16, 2004, Newdow contacted the PIC and was informed that there would be chaplains at the 2005 Inauguration, although he was not told how many or who they would be. See Compl. ¶ 41. Newdow then filed this action and a motion for a preliminary injunction on December 21, 2004, challenging the constitutionality of the use of any member of the clergy (or other invited guests) to deliver prayers at the 2005 Inauguration. See Compl. ¶¶ 35-47. Included as defendants in Newdow’s action are President Bush, the JCCIC, Senator Lott, the PIC, and Craig Jenkins, Executive Director of PIC. Newdow describes himself as “an atheist, who sincerely believes that there is no such thing as god, or God, or any supernatural force.” Id. ¶ 19; see Elk Grove, 124 S.Ct. at 2305-06. He asserts that any acknowledgment of God ridicules, rather than solemnizes, public occasions, Compl. ¶ 20, and alleges that at the 2001 Inauguration, Christian ministers gave sectarian Christian prayers that violated the Establishment Clause, id. ¶¶ 23-25. He contends that witnessing such a religious exercise at the 2001 Inauguration made him “feel like a second class citizen and a ‘political outsider’ on account of his religious beliefs,” id. ¶ 26, which infringed upon his fundamental right protected, by the Establishment Clause to view government action without having to confront government endorsement of religion, id. ¶ 27. Newdow asserts that “[i]t is presumed that Proposed Clergy’s prayers [at the 2005 Inauguration] will make Plaintiff feel like an ‘outsider’ as well.” Id. ¶ 57. According to Newdow, [t]he effect of the purely religious words uttered by [clergy at the 2001 Inauguration] was for Christian Americans to perceive them as an endorsement of their Christianity, and for non-Christian Americans, including plaintiff, to perceive the Pledge [sic] as a disapproval of their non-Christianity. It is presumed that Proposed Clergy’s prayers will have the same effect. Id. ¶ 67. Newdow claims “a fundamental constitutional right to observe and participate in the Nation’s official ceremonies free from governmental endorsement of religion,” and that he has a ticket for and plans to attend the 2005 Inauguration, but desires to avoid being subjected to government-endorsed religious dogma while there. See id. ¶¶ 74-76. The relief sought in Newdow’s complaint includes a declaratory judgment that “utilizing any clergymen (much less an openly Christian minister and an openly Christian pastor) in a presidential inauguration” violates the Establishment and Free Exercise Clauses of the First Amendment and the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb et seq. Compl. at 16, ¶1. In addition, Newdow asks this Court to enjoin the defendants (or other government officials) “from utilizing any clergymen to engage in any religious act,” or alternatively “from utilizing clergymen to engage in Christian religious acts,” at the 2005 Inauguration or future Presidential inaugurations, Id. at 16, ¶¶ II, III. A briefing schedule on Newdow’s motion for a preliminary injunction was proposed by the parties and adopted by the Court. That motion has been fully briefed, and both the federal defendants and PIC have filed motions to dismiss as well. A hearing was held on January 13, 2005. ANALYSIS I. Preliminary Injunction Standard In order to prevail on his application for a, preliminary injunction, Newdow must demonstrate (1) a substantial likelihood of success on the merits; (2). that he will suffer irreparable harm absent-the relief requested;. (3) that other interested parties will not be harmed if the requested relief is granted; and (4) that the public interest supports granting the requested relief. Cobell v. Norton, 391 F.3d 251, 258 (D.C.Cir.2004); Katz v. Georgetown Univ., 246 F.3d 685, 687-88 (D.C.Cir.2001); Taylor v. Resolution Trust Corp., 56 F.3d 1497, 1505-06 (D.C.Cir.1995); Washington Area Metro. Transit Comm’n v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C.Cir.1977). In determining whether to grant urgent relief, the Court must “balance the strengths of the requesting party’s arguments in each of the four required areas.” CityFed Fin. Corp. v. Office of Thrift Su pervision, 58 F.3d 738, 747 (D.C.Cir.1995). “If the arguments for one factor are particularly strong, an injunction may issue even if the arguments in other areas are rather weak.” Id. It is particularly important for Newdow to demonstrate a substantial likelihood of success on the merits; where a plaintiff cannot show a likelihood of success on the merits, “it would take a very strong showing with respect to the other preliminary injunction factors to turn the tide in plaintiff[’s] favor.” Davenport v. Int’l Bhd. of Teamsters, AFL-CIO, 166 F.3d 356, 366-67 (D.C.Cir.1999); Nat’l Head Start Ass’n v. Dep’t Health and Human Servs., 297 F.Supp.2d 242, 246 (D.D.C.2004) (factors “must be balanced against each other, but it is especially important for the movant to demonstrate a likelihood of success on the merits”). Because preliminary injunctions are extraordinary forms of judicial relief, courts should grant them sparingly. Sociedad Anonima Vina Santa Rita v. United States Dep’t of the Treasury, 193 F.Supp.2d 6, 13 (D.D.C.2001); see Dorfmann v. Boozer, 414 F.2d 1168, 1173 (D.C.Cir.1969). The Supreme Court has stated that “ ‘[i]t frequently is observed that a preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.’ ” Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997); accord Cobell, 391 F.3d at 258. II. Likelihood of Success A. Issue Preclusion At the outset, the Court must consider several arguments raised by defendants that pertain to whether it is appropriate for Newdow to bring this suit. The first of these argument is issue preclusion. Defendants argue that Newdow is precluded from bringing this suit because he previously brought essentially the same cause of action against President Bush in a suit that the Ninth Circuit, in Newdow I, dismissed for a lack of standing because Newdow had not alleged a concrete and particularized injury. If issue preclusion is likely to bar Newdow’s current suit, then he cannot show a substantial likelihood of success on the merits. 1. Legal Standard Under the doctrine of issue preclusion, “once a court has decided an issue of fact or law necessary to its judgment, that decision may preclude relitigation of the issue in a suit on a different cause of action involving a party to the first case.” Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980); see also Yamaha Corp. of Am. v. United States, 961 F.2d 245, 254 (D.C.Cir.1992). The purpose of the doctrine is judicial finality. See id. The preclusive effect of a prior ruling is established if: first, the same issue now being raised was “contested by the parties and submitted for judicial determination in the prior case”; second, the issue was “actually and necessarily determined by a court of competent jurisdiction in that prior case”; and third, preclusion does not “work a basic unfairness to the party bound by the first determination.” Id. The prior adjudication has preclusive effect even if it is erroneous. See Cutler v. Hayes, 818 F.2d 879, 888 (D.C.Cir.1987). 2. Newdow I The first prong of issue preclusion requires review of the actual issues of fact or law litigated in the prior suit and a determination whether resolution of any of those issues would preclude the current litigation. See Yamaha Corp., 961 F.2d at 254. In his first action, Newdow alleged that the prayer given at the 2001 Inauguration, which Newdow witnessed on television, was a violation of the Establishment Clause. 2001 Compl. ¶ 12-13. He requested that the court declare that President Bush violated the Establishment Clause and enjoin him from repeating that violation. Id. at 7. President Bush challenged Newdow’s standing to bring such a suit. The Magistrate Judge concluded that Newdow had Article III standing to bring an action seeking a total ban on prayers at inaugurations, and rejected President Bush’s argument that exposure to religious prayer on television is different than exposure in person. See Newdow I (Magistrate Judge, July 21, 2001) at 5, 7. The Magistrate Judge noted that an inauguration is “a historic event of national importance to which the public is invited, if not encouraged, to view on television,” and commented on the potential arbitrary nature of such a distinction, wondering if people attending who could not actually see or hear the prayer read would have standing. Id. at 5. Although the Magistrate Judge found standing, he concluded that the motion to dismiss should be granted because it was not an Establishment Clause violation to have religious prayer at an inauguration. Id. at 9. President Bush subsequently sought dismissal of the remaining claim— the constitutionality of the actual 2001 inaugural prayer — and in a December 28, 2001 decision the Magistrate Judge concluded that the final claim also should be dismissed because the court could not issue an injunction or declaratory relief against the President. See Newdow I (Magistrate Judge, Dec. 28, 2001), at 13. Newdow sought to amend his complaint to include Senator Mitch McConnell, chair of the JCCIC, but the Magistrate Judge found that amendment would be futile because the court also could not enjoin a member of Congress with regard to what is said at a Presidential inauguration. Newdow I (Magistrate Judge, Mar. 26, 2002) at 6-7. The District Court adopted the findings of the Magistrate Judge and dismissed Newdow’s action. Newdow I (District Court, May 23, 2002 Order), at 2. Newdow appealed to the Ninth Circuit, which affirmed the dismissal. In a brief decision, the Ninth Circuit held that “New-dow lacks standing to bring this action because he does not allege a sufficiently concrete and specific injury. See Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 482-86, 102 S.Ct. 752, 70 L.Ed.2d 700 .... (1982).” Newdow v. Bush, 89 Fed.Appx. 624, 625. The Ninth Circuit also upheld the district court’s decision not to allow amendment of the complaint as futile. Id. Several months later, Newdow brought this action against President Bush and others. As before, he claims that inaugural prayers violate the Establishment Clause, and as before, he asks this Court to enjoin the practice of giving religious prayers at Presidential inaugurations. Defendants maintain that Newdow has not alleged in this suit any new injury, law or facts sufficient to overcome the preclusive effect of the Ninth Circuit decision holding that Newdow had not alleged “a sufficiently concrete and specific injury” under Valley Forge Christian Coll. v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982) (“Valley Forge”). A review of Newdow’s two complaints shows direct parallels in the injury alleged by Newdow. In the Complaint filed in this Court, he alleges the following injuries: • Being forced to confront ... religious dogma as a price to pay for observing a government ceremony is a substantial burden upon Plaintiffs Free Exercise right. [Compl. ¶ 28] • The 2001 prayers made Plaintiff — a minister, proponent and follower of a religious faith that specifically denies the existence of God and the veracity of Christianity — feel like an “outsider” on both accounts. It is presumed that Proposed Clergy’s prayers ■will make Plaintiff feel like an “outsider” as well. [Compl. ¶ 57] • The effect of the purely religious words uttered by [clergy at the 2001 Inauguration] was for Christian Americans to perceive them as an endorsement of their Christianity, and for non-Christian Americans, including Plaintiff, to perceive the Pledge [sic] as a disapproval of their non-Christianity. It is presumed that Proposed Clergy’s prayers will have the same effect. [Compl. ¶ 67] • Wishing to avoid any government-sponsored religious dogmas — -much less Christian monotheistic religious dogma — at this momentous life experience, Plaintiff is placed in the untenable position of having to chose between not participating in the presidential inauguration or being forced to countenance purely religious ideals that he expressly denies and that turn him into an ‘outsider.’ [Compl. ¶ 76] Plaintiff alleged virtually identical injuries in his complaint in Newdow I: • The effect of the Rev. Graham’s purely religious words was for Christian Americans to perceive them as an endorsement of their Christianity, and for non-Christian Americans, including Plaintiff, to perceive the Pledge [sic] as a disapproval of their non-Christianity. [2001 Compl. ¶ 29] • Due to religious activity, Plaintiff — a minister of a religious faith that specifically denies the existence of God and the veracity of Christianity — was made to feel as an ‘outsider.’ [2001 Compl. ¶ 30] Based on these virtually identical allegations of injury, in each case Newdow sought a declaration and injunction barring prayer by invited clergy at Presidential inaugurations. It appears, then, that Newdow is precluded from relitigating his standing to bring an Establishment Clause action challenging inaugural prayers. See Cutler, 818 F.2d at 889 (“Principles of collateral estop-pel clearly apply to standing determinations.”). Certainly the Ninth Circuit is a “court of competent jurisdiction.” See Yamaha Corp., 961 F.2d at 254. Moreover, standing was raised, contested and actually decided in Newdow I. Applying the Ninth Circuit’s standing decision to this action would also not “work a basic unfairness to the party bound,” as the record contains sufficient evidence that Newdow vigorously argued he had standing to bring his first suit. See id. (“An example of such unfairness would be when the losing party clearly lacked any incentive to litigate the point in the first trial.”). 3. Curable Defect Exception Although Newdow’s present action would thus appear to be precluded by the prior Ninth Circuit decision, the inquiry does not end here. This Circuit has recognized a “curable defect” exception to preclusion for jurisdictional dismissals. See Dozier v. Ford Motor Co., 702 F.2d 1189 (D.C.Cir.1983). The “curable defect” exception permits an action to proceed if the jurisdictional ground for dismissal of the original suit has been remedied by occurrences arising after the dismissal of the first action. Id. at 1192. In order for the “curable defect” exception to apply, a plaintiff must supply in the second suit a “precondition requisite” to the proceeding that was not alleged or proven in the original suit. Id. The key to the “curable defect” exception is that the jurisdictional deficiency in the original suit, here a lack of standing because the alleged injury was not sufficiently concrete and specific, must be “remedied by occurrences subsequent to the original dismissal.” Id. (emphasis in original); see also Costello v. United States, 365 U.S. 265, 284-88, 81 S.Ct. 534, 5 L.Ed.2d 551 (1961) (government’s filing of an affidavit of good cause in a denaturalization proceeding); Martin v. Dep’t of Mental Hygiene, 588 F.2d 371, 373 n. 3 (2d Cir.1978) (proper service of process); Napper v. Anderson, 500 F.2d 634, 637 (5th Cir.1974) (change in residency adequate to invoke diversity jurisdiction). The new fact or occurrence must be separate and distinct from the past transaction that formed the basis for the original cause of action. See Dozier, 702 F.2d at 1192. Accordingly, a mere “defect in pleading” in the original complaint cannot be remedied through the “curable defect” doctrine. Id. Although Newdow’s present Complaint and alleged injuries are virtually identical to those in Newdow I, there are two “occurrences” that have arisen since the February 2004 decision by the Ninth Circuit that could arguably suffice to prevent preclusion. First, Newdow alleges prospective injury arising from the 2005 Inauguration, rather than injury just from the 2001 Inauguration. Second, Newdow alleges that he will actually attend the 2005 Inauguration, while in 2001 he watched the inauguration on television. Compare Compl. ¶ 75 (“Plaintiff plans to attend the inaugural ceremonies, and already has a ticket reserved.”) with 2001 Compl. ¶ 28 (“Plaintiff watched the inaugural ceremonies on television.”). The fact that Newdow is alleging injury arising from inaugural prayer in 2005 may be a new occurrence as to an inquiry into the particular prayers, but that fact does not address the jurisdictional deficiency in Newdow’s prior suit. The relevant question is not whether there is a new prayer, as there certainly will be, but whether the existence of this new prayer remedies Newdow’s original standing deficiency. See Dozier, 702 F.2d at 1192. Plainly it does not. Newdow does not allege that the 2005 prayer will cause a different type of injury. Therefore, new prayers in the 2005 Inauguration are not new “occurrences” for purposes of remedying the jurisdictional deficiencies in New-dow’s prior suit. The other asserted new occurrence is Newdow’s assertion that he will attend the 2005 Inauguration. See Compl. ¶ 75. Again, however, for this new fact to trigger the “curable defect” exception, it must remedy the jurisdictional deficiency. This Court agrees with the assessment of the Magistrate Judge in Newdow I that there is no meaningful distinction between watching and hearing an inaugural ceremony on television and being present in Washington for it. See Newdow I (Magistrate Judge, July 17, 2001), at 5. In the prior suit, Newdow agreed with this view, arguing before the Ninth Circuit that “media exposure unquestionably provides standing to those who are affected.” See Reply Br. of Pet., Newdow v. Bush, No. 02-16327 (9th Cir.) available at 2003 WL 22670037, at *9. Given the national broadcast and national audience of the inaugural ceremonies, and the cause of the injury alleged — the reading of prayer — it is difficult to believe that physical presence creates a different injury than the one Newdow allegedly suffered watching the 2001 event on television. Not only is the television viewer more likely to hear and see the reading of the prayer than a person standing or sitting far away from the podium on the Capitol grounds, but a mature adult such as Newdow is unlikely to suffer any meaningful coercion from his physical presence in the audience so as to enhance his injury. Indeed, Newdow has not persuasively argued that he will be subject to any unique coercion through attendance. Therefore, this Court doubts that New-doVs new allegation of attending the 2005 Inauguration cures the prior jurisdictional defect of a lack of standing, as found by the Ninth Circuit. The question for issue preclusion purposes is not whether that court was right or whether Newdow actually does have standing, but rather whether his intended in-person attendance in 2005 makes a difference for standing and thus comes within the curable defect exception. The Court concludes it probably does not, and therefore issue preclusion based on Newdow I casts grave doubt on his likelihood of succeeding on the merits in this action. B. Standing Even if Newdow’s current action is not precluded by the Ninth Circuit’s judgment in Newdow I, he faces sizable hurdles on the issue of standing. The question of standing is a threshold determination of “whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.” Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). The power of the federal judiciary to rule upon the “constitutionality of legislative or executive acts,” is not absolute but is limited to actual cases and controversies. See Valley Forge, 454 U.S. at 471, 102 S.Ct. 752. The power of the judiciary exists only to redress those injuries accruing to the plaintiff, even though others “may benefit collaterally.” Warth, 422 U.S. at 499, 95 S.Ct. 2197. The exercise of jurisdiction is weighed against a “ ‘deeply rooted’ commitment” of the courts “ ‘not to pass on questions of constitutionality’ unless adjudication of the constitutional issue is necessary.” Elk Grove, 124 S.Ct. at 2308 (quoting Spector Motor Serv., Inc. v. McLaughlin, 323 U.S. 101, 105, 65 S.Ct. 152, 89 L.Ed. 101 (1944)). Therefore, it is incumbent upon every plaintiff to allege that the challenged conduct caused the plaintiff to suffer an injury that can be redressed by the court. See Elk Grove, 124 S.Ct. at 2308. This is a burden borne by the plaintiff, and each element of standing “must be supported in the same way as any other matter upon which the plaintiff bears the burden of proof, ie., with the manner and degree of evidence required at the successive stages of litigation.” Lujan v. Defenders of Wild- life, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). To have standing, plaintiff must first allege that he “suffered an ‘injury in fact’ — an invasion of a legally protected interest which is (a) concrete and particularized ... and (b) actual or imminent, not ‘conjectural’ or ‘hypothetical’ ....’’Id. at 560, 112 S.Ct. 2130 (citations omitted). “Second, there must be a causal connection between the injury and the conduct complaint of.” Id. (quotations omitted). “Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Id. (quotations omitted). Examination of Newdow’s claim of standing to bring this action raises serious injury-in-fact and redressability issues. 1. Injury-in-fact The first prong of Article III standing is injury-in-fact. Newdow has alleged that he finds religious prayers offensive and will be made to feel like an outsider if religious prayers are read at the 2005 Inauguration. See Compl. ¶¶ 21, 56-57, 76. However, courts generally have been reluctant to grant standing in cases where the plaintiff alleges nothing more than hurt feelings or disagreement with an action. In Valley Forge, the Court stated that the “psychological consequence presumably produced by observation' of conduct with which one disagrees ... is not an injury sufficient to confer standing under Article III, even though the disagreement is phrased in-constitutional terms.” 454 U.S. at 485-86. The Court emphasized that injury for purposes of standing “is not measured by the intensity of the litigant’s interest or fervor of his advocacy.” Id. at 486, 102 S.Ct. 752. Newdow has alleged injuries that are not obviously particularized or specific to him, but are instead generalized grievances shared by everyone who might dislike the inclusion of religious prayer in Presidential inaugurations. When faced with such a widely-shared injury, the Supreme Court has observed that “where large numbers of Americans suffer alike, the political process, rather than the judicial .process, may provide the more appropriate remedy for the widely shared grievance.” FEC v. Akins, 524 U.S. 11, 23, 118 S.Ct. 1777, 141 L.Ed.2d 10 (1998) (citing Warth, 422 U.S. at 500, 95 S.Ct. 2197). Still, the fact that an injury is felt potentially by a large portion of the population does not automatically disqualify it as a basis for standing. Id. at 21-23, 118 S.Ct. 1777 (finding standing for voters who allege a denial of information requested in accordance with a statute). Hence, although widely shared injuries are typically of an “abstract and indefinite nature” and therefore not “concrete and particularized,” that is not so in every circumstance. It is possible for a plaintiff to allege an injury that, although widely-shared by many, is particularized and concrete. See id. Newdow has alleged facts that potentially transform his injury from an abstract “common concern for obedience to the law” into a more concrete and particularized injury. He has alleged that he is a citizen of the United States and an atheist who does not believe in any God, regardless of religious sect. See Compl. ¶.19. This belief, he contends, puts him in a small minority of the United States— roughly 4% to 9%. See Compl., App. C. In addition, Newdow has viewed the inaugural celebration in the past and alleges that he will do so in the future. Compl. ¶¶ 26, 75. Finally, Newdow has asserted that he was offended and made to feel like a “second class citizen” and “political outsider” as a result of observing the religious prayers at the 2001 Inauguration. Id. ¶¶24, 26. Newdow also emphasizes his intent to physically attend the 2005 Inauguration and his ticket for the event as an additional basis for an injury. As discussed above, it is not self-evident to this Court that attendance at the Inauguration, or possessing a ticket, gives Newdow an injury any different from those viewing on television. The injured feelings or stigmatization are no different, it would seem, than hearing and “seeing” a prayer live from the speaker’s mouth (or by a loud speaker and large screen) or from a television, especially for a mature adult such as New-dow. Whether he is in his home, elsewhere observing television, or seated in a group of several thousand listening to a loudspeaker and watching a screen would appear to be to make no difference. For a mature adult and admitted atheist, coercion would seem unlikely in any setting. Hence, there remains a strong argument that Valley Forge should control the injury-in-fact inquiry. Defendants argue that Newdow is merely alleging a “psychic injury” from the observance of a prayer with which he disagrees. This view was adopted in Newdow v. Eagen, 309 F.Supp.2d 29, 34-35 (D.D.C.2004), where Newdow’s challenge to the use of chaplins in the United States Congress was dismissed for lack of standing. Quoting from Valley Forge, the court found that New-dow’s asserted right to observe Congress free of religion did not give rise to standing. Id. So too, the Ninth Circuit in New-dow I, examining very similar alleged injuries, found no standing based on Valley Forge. Nonetheless, it is true that federal courts, notwithstanding the important Article III standing considerations identified in Valley Forge, have found injury-in-fact where a complaint is founded upon observing offensive religious materials. In such cases, the plaintiffs have alleged a “personal connection” with the challenged conduct, usually in the plaintiffs home or community. See, e.g., Suhre v. Haywood County, 131 F.3d 1083, 1087 (4th Cir.1997) (county resident had standing to challenge Ten Commandment display in county courthouse); Washegesic v. Bloomingdale Pub. Sch., 33 F.3d 679, 681-83 (6th Cir.1994) (former student had standing to confront religious portrait at school he formerly attended); Saladin v. City of Milledgeville, 812 F.2d 687, 692-93 (11th Cir.1987) (plaintiff who was part of city and received mail from city could challenge religious symbols on city’s seal); Arizona Civil Liberties Union v. Dunham, 112 F.Supp.2d 927, 935 (D.Ariz.2000) (“The genuine feeling of exclusion from the community in which one resides, and the deep offense perceived from an insult to one’s religious view committed by the government in one’s community, satisfy the injury prong of standing.”). This concept of standing limited to those with a “personal connection” to the complained of conduct is generally not present in cases dealing with prayer. Still, in most cases involving prayer, plaintiffs implicitly have alleged a “personal connection” with the event at which the prayer is read. See Lee v. Weisman, 505 U.S. 577, 584, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992) (plaintiff had standing as a currently enrolled student in the school system); cf. Doe v. Madison School Dist. No. 321, 177 F.3d 789, 797 (9th Cir.1999) (en banc) (parent lacked standing to challenge prayer at graduation when parent did not have any children currently in the school system). There is a legitimate question whether Newdow has established a “personal connection” with the Inauguration. Although experiencing the prayer read in person rather than on television does not appear to be a meaningful distinction, there is an argument that actual attendance could satisfy a personal connection. Tickets are issued and Newdow has taken the steps to obtain one of those tickets, and he plans to be at the event. This personal connection inquiry also requires consideration of the event itself. A Presidential inauguration is certainly national, perhaps uniquely 'so. The entire country is invited to view the swearing in of the President. It is a day to celebrate the new presidency, and permits the country to unite after a potentially fractious election. It is also nationally televised live for all citizens to view. As such, there is an argument that all those who “participate” in a Presidential inauguration, whether by television, radio, or in person, have a personal connection to the event sufficient to create an injury-in-fact, if they were injured through that participation. Therefore, the unique nature of the Inauguration may create a personal connection for Newdow, either by physically attending or merely watching on television, sufficient to establish Article III standing. 2. Redressability Although Newdow thus has a colorable claim of injury-in-fact, there remains a serious doubt that this Court can redress the alleged injuries suffered by Newdow. In his motion for a preliminary injunction, Newdow asks this Court to enjoin defendants from allowing any clergy (or other invited guest) to give any religious prayer at the 2005 Presidential Inauguration. In his Reply, he argues that the Court could redress his injuries by merely declaring “that chaplain-led prayer at government ceremonies violates the Establishment Clause.” PL Reply at 9. Redressability is one of the three elements of Article III standing. See Lujan, 504 U.S. at 561, 112 S.Ct. 2130. An injury is redressable by the court if it is “ ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redresseed by a favorable decision.’ ” Id. To redress Newdow’s alleged injuries, the Court would need to issue an injunction that would prevent the reading of religious prayers at the Inauguration. One question is to which, if any, of the defendants could an. injunction issue that would achieve redress for Newdow. There are a number of defendants in this action: President Bush; the JCCIC; Senator Trent Lott; the Joint Task Force — Armed Forces Inaugural Committee (“JTF-AFIC”); Major General Galen B. Jackman; the PIC; Greg Jenkins, Executive Director of PIC; and one or more unnamed clergy (wo)men. Newdow alleges that President Bush has “ultimate decision-making power” in planning the inaugural ceremony, including the power to decide who will participate in the ceremony. See Compl. ¶¶ 39, 44. President Bush also selects the clergy to give the invocation. Id. ¶ 40. Newdow alleges that PIC is “quasi-governmental” and Greg Jenkins “will see to it that the President’s choices as to Proposed Clergy are able to deliver their religious prayers.” Id. ¶¶ 14, 45. Senator Lott and the JCCIC provide PIC the “means to access and utilize the government’s property.” Id. ¶ 46. Finally, Newdow alleges that Major General Jack-man and the JTF-AFIC “will provide the necessary logistical and equipment support so that Proposed Clergy will be able to deliver their religious prayers during the inauguration ceremony.” Id. ¶ 47. Defendants challenge some of Newdow’s factual allegations. PIC argues that they are a private entity that operates at the “pleasure” of the President-Elect. See PIC Mem. at 8; Declaration of Gregory J. Jenkins (“Jenkins Dec.”) ¶¶ 2-3. Furthermore, PIC asserts that it is responsible for planning, financing and executing all events in connection with the inauguration. See Jenkins Dec. ¶ 6. PIC’s sole responsibility for the swearing in ceremony is to implement the President-Elect's choices of who will speak at the ceremony, including inviting and facilitating the Presidents Elect’s choice of clergy. Id. ¶ 7. The JTF-AFIC does not provide a chaplain or any other support or assistance for any clergy at the Inauguration. See Declaration of Thomas L. Groppel ¶ 8. Reviewing the facts in the record, the only party against whom an injunction would redress Newdow’s injury is President Bush. He has ultimate decision-making power in selecting speakers for the Inauguration, including clergy. See Compl. ¶ 39. There is nothing in the record before the Court that would indicate that another defendant could prevent the President from inviting clergy of his choosing to give a religious prayer. At the hearing on the motion for preliminary injunction, Newdow conceded that only an injunction against the President can truly redress his injuries. The prospect of this Court issuing an injunction against the President raises serious separation of powers concerns. There is longstanding legal authority that the judiciary lacks the power to issue an injunction or declaratory judgment against the co-equal branches of the government— the President and the Congress. See Mississippi v. Johnson, 4 Wall. 475, 71 U.S. 475, 500, 18 L.Ed. 437 (1866) (“Neither [the Congress or President] can be restrained in its actions by the judicial department; though the acts of both, when performed, are, in proper cases, subject to its cognizance.”); see also Franklin v. Massachusetts, 505 U.S. 788, 802-03, 112 S.Ct. 2767, 120 L.Ed.2d 636 (1992) (plurality opinion) (“In general, ‘this court has no jurisdiction of a bill to enjoin the President in performance of his official duties.’ ” (quoting Mississippi v. Johnson, 71 U.S. 475, 500, 4 Wall. 475, 18 L.Ed. 437)); Commonwealth of Massachusetts v. Mellon, 262 U.S. 447, 487, 43 S.Ct. 597, 67 L.Ed. 1078 (1923) (“general rule is that neither department may invade the province of the other and neither may control, direct, or restrain the action of the other”); Clinton v. Jones, 520 U.S. 681, 718-19, 117 S.Ct. 1636, 137 L.Ed.2d 945 (1997) (Breyer, J. concurring) (acknowledging “the apparently unbroken historical tradition ... implicit in the separation of powers that a President may not be ordered by the Judiciary to perform particular Executive acts” (quoting Franklin, 505 U.S. at 802-03, 112 S.Ct. 2767)); Swan v. Clinton, 100 F.3d 973, 978 (D.C.Cir.1996) (noting that the Supreme Court has issued a “stern admonition” that injunctive relief against the President personally is an “extraordinary measure”). The question of enjoining the President was specifically addressed in Franklin v. Massachusetts. There, Massachusetts sought to enjoin the President from submitting the census statement to Congress in accordance with 2 U.S.C. § 2a(a). See 505 U.S. at 792, 112 S.Ct. 2767. Although the Supreme Court, in a plurality opinion, found that a court could redress the plaintiffs injury by enjoining the Secretary of Commerce, the Court stated that “a grant of injunctive relief against the President himself is extraordinary and should have raised judicial eyebrows.” Id. at 802, 112 S.Ct. 2767. The plurality also noted that generally courts would have no jurisdiction to enjoin the President in the performance of his official duties. Id. at 803, 112 S.Ct. 2767. Justice Scalia, concurring in the decision, echoed the sentiments of the plurality: “I think it is clear no court has authority to direct the President to take an official act.” Id. at 826, 112 S.Ct. 2767; see also Clinton v. Jones, 520 U.S. at 718-19, 117 S.Ct. 1636 (Breyer, J., concurring). The D.C. Circuit in Swan v. Clinton articulated the important separation of powers issue implicated if the judiciary were to enjoin the President: The reasons why courts should be hesitant to grant such relief [an injunction against the President personally] are painfully obvious; the President, like Congress, is a coequal branch of government, and for the President to “be ordered to perform particular executive ... acts at the behest of the Judiciary” at best creates an unseemly appearance of constitutional tension and at worst risks a violation of the constitutional separation of powers. 100 F.3d at 977. Newdow has also raised the possibility of this Court simply issuing a declaratory judgment against the President. To begin with, this makes no sense with respect to his current action for a preliminary injunction. Moreover, the same principles foreclose a declaratory judgment against the President as well as injunctive relief. See, e.g., Swan, 100 F.3d at 977 (“Although the following discussion is couched in terms of our ability to grant injunctive relief against the President, similar considerations regarding a court’s power to issue relief against the President himself apply to Swan’s request for a declaratory judgment.”). As Justice Scalia explained in Franklin v. Massachusetts: For similar reasons, I think we cannot issue a declaratory judgment against the President. It is incompatible with his constitutional position that he can be compelled to defend his executive actions before a court _ The President’s immunity from such judicial relief is “a functionally mandated incident of the President’s unique office, rooted in the constitutional tradition of the separation of powers and supported by our history.” 505 U.S. at 827, 112 S.Ct. 2767 (Scalia, J., concurring) (quoting Nixon v. Fitzgerald, 457 U.S. 731, 749, 102 S.Ct. 2690, 73 L.Ed.2d 349 (1982)). The immunity of the President from such a judicial order is a legal issue of no little moment, resting near — if not directly on — the fault line separating the at times competing constitutional themes of the separation of powers and checks and balances. The immunity is not without its exceptions, and the outer boundaries of the immunity remain unclear. The Supreme Court in Franklin left open the question, for example, whether the judiciary could enjoin the President in his ministerial functions. See Franklin, 505 U.S. at 800, 112 S.Ct. 2767. Likewise, the question whether the President may be enjoined for actions taken outside the compass of his official duties appears to remain unresolved. See Clinton v. Jones, 520 U.S. at 705-06, 117 S.Ct. 1636. Courts have also “bypassed” the immunity of the President where plaintiffs injury “can be redressed by injunctive relief against subordinate officials.” Swan, 100 F.3d at 977. However, none of these exceptions to presidential immunity appear, at least on the present record, to help Newdow here. The President’s selection of clergy at his Inauguration cannot plausibly be considered ministerial. See Mississippi v. Johnson, 71 U.S. at 498-99, 71 U.S. 475 (“[A] ministerial duty ... is one in respect to which nothing is left to. discretion.”). The Inauguration also does not reasonably appear to be outside the President’s official duties; indeed, whatever extent that is the case, the selection of clergy would lose the cloak of state action that allows Newdow to bring his challenge under the Establishment Clause in the first place. The federal defendants concede that the challenged conduct here is taken by the President in his official capacity, and Newdow agrees. Finally, there are no other officials — subordinate or otherwise — to whom the Court could issue an order that would redress the constitutional violation alleged by Newdow in this case. Newdow urges the Court to read an exception into the immunity of the President from injunctive relief for instances where he is claimed to have violated the Constitution, but there is no support at all for such an exception, and the nature of the claimed violation at any rate does not alter the crucial point that, in the words of the D.C. Circuit, it is an “extraordinary measure” to issue an injunction against the President. Defendants contend that there has never been an injunction against the President issued and sustained by the federal courts, and this court is not aware of any. Therefore, the Court’s grave concerns about its power to issue an injunction against the President, which is the only method of redressing Newdow’s alleged injuries, places in peril Newdow’s standing to bring this action. Without re-dressability and therefore standing, New-dow would be unable to succeed on the merits of his claims. C. The First Amendment Claims Even if Newdow were able to overcome the hurdles posed by consideration of issue preclusion and standing, he would face an additional set of difficulties in trying to prove that a religious prayer at the 2005 Inauguration will violate the United States Constitution. In considering the merits of his claim, it is important to note that the contents of the 2005 inaugural prayers remain unknown. As a result, Newdow — an avowed atheist — is led in his motion for a preliminary injunction to request an order prohibiting any prayer by anyone other than the President. He claims that any such prayer would infringe upon his rights under the Establishment and Free Exercise Clauses, as well as the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb. It is the claim under the Establishment Clause, however, that forms the heart of New-dow’s challenge, and so it is to that claim that the Court turns first. For decades, the Supreme Court has tested the constitutionality of state action under the Establishment Clause pursuant to a standard first articulated in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). This test provides that an action is lawful only if it has a “secular ... purpose” and its “principal or primary effect” is one “that neither advances nor inhibits religion.” Id. at 612-13, 91 S.Ct. 2105. Although often criticized, and even occasionally ignored, the Lemon test remains viable law, and therefore serves to this day as the governing standard for assessing the constitutionality of most state-sponsored religious activities under the Establishment Clause. See Santa Fe Independent Sch. Dist. v. Doe, 530 U.S. 290, 120 S.Ct. 2266, 147 L.Ed.2d 295 (2000) (applying Lemon test to invalidate school district policy allowing student-led, student-initiated prayer before public high school football games); Lee, 505 U.S. at 587, 112 S.Ct. 2649 (“[W]e do not accept the invitation ... to reconsider our decision in Lemon v. Kurtzman.”). There are exceptions to the Lemon test, however, and one of those exceptions, reflected in Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983), is of particular relevance here. In that case, the Supreme Court upheld the Nebraska legislature’s practice of opening each session with a prayer offered by a chaplain paid with public funds. In its analysis, the Court did not mention Lemon even once. Instead, the Court undertook an extensive inquiry into the history of legislative prayer, and concluded that the “opening of sessions of legislative and other deliberative public bodies with prayer is deeply embedded in the history and tradition of this county.” Id. at 786-87, 103 S.Ct. 3330. The Court noted that “the First Congress, as one of its early items of business, adopted the policy of selecting a chaplain to open each session with prayer,” and that the “practice of opening sessions with prayer has continued without interruption ever since that early session of Congress.” Id. at 787, 103 S.Ct. 3330. The Marsh Court declined to read the “Establishment Clause of the Amendment to forbid what [its Framers] had just declared acceptable.” Id. at 790, 103 S.Ct. 3330. Citing the “unambiguous and unbroken history of more than 200 years,” the Court held that the invocation of divine guidance “on a public body entrusted with making the laws is not, in these circumstances, an ‘establishment’ of religion.” Id. at 791, 103 S.Ct. 3330. Addressing the concern that the prayer was in the “Ju-deo-Christian” tradition, the Court explained that 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.” Id. at 794-95, 103 S.Ct. 3330. “That being so,” Marsh concluded, “it is not for us to embark on a sensitive evaluation or ... parse the content of a particular prayer.” Id. The Supreme Court had occasion to address Marsh several years later in County of Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989). A divided Court, in a series of fractured opinions, allowed under the Establishment Clause a combined holiday display of a Chanukah menorah, a Christmas tree, and a sign saluting liberty, but found unconstitutional a creche standing alone on the staircase of the county courthouse. In an opinion dissenting from the creche portion of the Court’s decision, Justice Kennedy (joined by three other Justices) maintained that he “cannot comprehend” how the creche can be invalid in light of the Court’s reasoning and holding in Marsh. See County of Allegheny, 492 U.S. at 664, 109 S.Ct. 3086 (Kennedy, J., concurring in part and dissenting in part). Justice Blackman, writing the opinion of the Court on behalf of himself and four other Justices, responded to Justice Kennedy’s invocation of Marsh. Justice Blackmun explained that the Court had recognized in Marsh that “not even the ‘unique history’ of legislative prayer can justify contemporary legislative prayers that have the effect of affiliating the government with any one specific faith or belief.” Id. at 603, 109 S.Ct. 3086 (quoting Marsh, 463 U.S. at 791, 103 S.Ct. 3330). Justice Blackman noted that the legislative prayers in Marsh did not violate this principle “because the particular chaplain had ‘removed all references to Christ.’ ” Id. at 603, 109 S.Ct. 3086 (quoting Marsh, 463 U.S. at 793 n. 14, 103 S.Ct. 3330). He explained that there is accordingly a difference between “a specifically Christian symbol, like a creche, and more general religious references, like the legislative prayers in Marsh.” Id. at 603, 109 S.Ct. 3086. However “history may affect the constitutionality of nonsectarian references to religion by the government,” Justice Blackman concluded, “history cannot legitimate practices that demonstrate the government’s allegiance to a particular sect or creed.” Id. at 604, 109 S.Ct. 3086. The Supreme Court declined once again to apply Marsh in Lee v. Weisman, in which the inclusion of a clergy-led nonsectarian prayer in the graduation ceremonies of city public schools was invalidated. In Lee, the Court noted the “heightened concerns with protecting freedom of conscience from subtle coercive pressures” in public schools. 505 U.S. at 592, 112 S.Ct. 2649. The Court explained that “[t]he atmosphere at the opening of a session of a state legislature where adults are free to enter and leave with little comment and for any number of reasons cannot compare with the constraining potential of the one school event most important for the student to attend.” Id. at 597, 112 S.Ct. 2649. Noting that the “influence and force” in a formal school graduation are “far greater” than the practice condoned in Marsh, the Court declined to apply Marsh to the circumstances of a school prayer. See id. at 597-98, 112 S.Ct. 2649. Indeed, the Court went out of its way to stress that the “sole question” addressed was graduation ceremonies where “young graduates who object are induced to conform.” Id. at 599, 112 S.Ct. 2649. The Court applied the Lemon test intead, and invalidated the school graduation prayer policy. See id. at 584, 112 S.Ct. 2649. Courts have applied the reasoning of Marsh to uphold prayer by a paid legislative chaplain at the United States Congress, see Murray v. Buchanan, 720 F.2d 689, 689 (D.C.Cir.1983) (en banc); Newdow v. Eagen, 309 F.Supp.2d 29 (D.D.C.2004), and prayer by a military chaplain at Army bases, see Katcoff v. Marsh, 755 F.2d 223 (2d Cir.1985), but have declined to extend the decision to prayer by a state court judge to open each day in court, see North Carolina Civil Liberties Union Legal Found. v. Constangy, 947 F.2d 1145, 1147-49 (4th Cir.1991), or prayer at town council and school board meetings, at least in certain circumstances, see Coles v. Cleveland Board of Educ., 171 F.3d 369, 371 (6th Cir.1999). The question for this Court— at least in the first instance — -is whether the circumstances of prayer at the Presidential inauguration bring this case within the ambit of the Marsh exception to the general Establishment Clause jurisprudence. Newdow insists at the outset that this case is closer to the Supreme Court’s recent school prayer decisions than to Marsh and therefore should be governed by those decisions. He relies most heavily on Lee and on Santa Fe. Newdow quotes the Court in these decisions for statements such as “the religious liberty protected by the Constitution is abridged when the State affirmatively sponsors the particular religious practice of prayer” and “though the First Amendment does not allow the government to stifle prayers which aspire to these ends, neither does it permit the government to undertake that task for itself.” Lee, 505 U.S. at 589, 112 S.Ct. 2649. Newdow maintains that the decision in Marsh can have little remaining vitality in light of such language. The Supreme Court has frequently emphasized the unique problems posed by prayer in schools, and it is plain from a reading of Lee and the other decisions cited by Newdow that the Court believed that its school prayer decisions could coexist with its endorsement of ceremonial deism in Marsh. See Lee, 505 U.S. at 596, 112 S.Ct. 2649 (“Inherent differences between the public school system and a session of a state legislature distinguish this case from Marsh v. Chambers.”); Edwards v. Aguillard, 482 U.S. 578, 583 n. 4, 107 S.Ct. 2573, 96 L.Ed.2d 510 (1987) (emphasizing that Marsh analysis “is not useful in determining the proper roles of church and state in public schools, since free public education was virtually nonexistent at the time the Constitution was adopted”). Indeed, a judge of this Court recently held that Marsh was not overruled by Lee and Santa Fe, and this Court sees no reason to depart from that conclusion. See Newdow, 309 F.Supp.2d at 40-41. This leaves Newdow to argue that the circumstances in this case do not resemble those of the legislative prayer upheld in Marsh, but are instead closer to a conventional Establishment Clause case — and in particular the school prayer cases — where the Lemon test is routinely applied. In light of the jurisprudence of the Supreme Court, and the way that lower courts have read and applied Marsh, this argument faces several obstacles, particularly on the limited preliminary injunction record. First, the Marsh test has been read to govern those acts of government-sponsored religious activity that are “deeply embedded in the history and tradition of this country.” Marsh, 463 U.S. at 786, 103 S.Ct. 3330. As a general matter, the courts that have declined to apply Marsh to a particular act on the basis of an insufficient historical tradition have done so where the activity at issue cannot be traced to the founding of the country and the adoption of the Bill of Rights. See, e.g., Mellen v. Bunting, 327 F.3d 355, 368 (4th Cir.2003) (finding Marsh inapplicable to supper prayers at Virginia Military Institute because “public universities and military colleges, such as VMI, did not exist when the Bill of Rights was adopted”); Glassroth v. Moore, 335 F.3d 1282 (11th Cir.200