A panel of the U.S. Court of Appeals for the Seventh Circuit in Chicago today ruled 3-0 that the Freedom From Religion Foundation and its plaintiffs do not have standing to continue their historic challenge of the 1952 congressional act declaring an annual National Day of Prayer and requiring the president to issue a proclamation exhorting citizens to pray.
FFRF announced immediately it will seek a rehearing by the entire Seventh Circuit (“en banc” review).
The appeals court overturned the district court’s strong ruling in favor of FFRF’s challenge, FFRF v. Obama, by U.S. District Judge Barbara Crabb in April 2010. Crabb ruled the National Day of Prayer as enacted by Congress was unconstitutional: “In this instance, the government has taken sides on a matter that must be left to individual conscience.” Crabb added: "The same law that prohibits the government from declaring a National Day of Prayer also prohibits it from declaring a National Day of Blasphemy."
Crabb noted a National Day of Prayer was no more within the purview of government to declare than encouraging “citizens to fast during the month of Ramadan, attend a synagogue, purify themselves in a sweat lodge or practice rune magic."
Foundation Co-President Annie Laurie Gaylor condemned the appeals court decision as cowardly. She said it is clear that had the appeals court panel ruled on the merits instead of throwing the case out on standing, FFRF would have won, as it did in federal district court.
“Our challenge is so strong, our claim is so correct. The First Amendment says, ‘Congress shall make no law respecting an establishment of religion.’ ‘No law’ should mean no law!” Gaylor said.
The National Day of Prayer was enacted by Congress in 1952 at the behest of Rev. Billy Graham and modified at the behest of Christian evangelicals in 1988. The law orders the president to set aside the first Thursday in May every year “as a National Day of Prayer, on which the people of the United States may turn to God in prayer and meditation at churches, in groups and as individuals.”
“Congress and the president of the United States have no business telling me or any other citizen to pray, ‘to turn to God in prayer at churches,’ much less setting aside an entire day for prayer every year and even telling me what to pray about,” said Gaylor. She and Dan Barker, who co-directs FFRF, are two of six FFRF officers or board members who are individual plaintiffs in the historic lawsuit.
Barker said: “The Seventh Circuit’s decision today would seemingly allow Congress to declare a national religion as long as no one is forced to participate directly in the religion’s practices!”
“We are very troubled by the court’s conclusion that congressionally mandated endorsements of religion by the president amount to no more than ‘hurt feelings,’” commented Richard L. Bolton, FFRF’s litigation attorney.
“We have been told recently by the Supreme Court in Winn v. Arizona that taxpayers cannot complain about the use of tax appropriations for alleged religious preferences. Now, the Seventh Circuit closes the courthouse door to the intended audience of presidential proclamations exhorting religion. The courts are effectively eviscerating the Establishment Clause of any practical significance by making it unenforceable by anyone,” Bolton said.
“By making coercion the only touchstone for accountability under the Establishment Clause, outright governmental endorsement of religion is deemed a matter of no concern to the courts,” Bolton added.
FFRF is also challenging the National Day of Prayer at the gubernatorial level in Colorado, and in a federal lawsuit filed last month seeking an injunction ordering Arizona Gov. Jan Brewer not to issue her usual Arizona Day of Prayer on the first Thursday in May.
