The Freedom From Religion Foundation’s landmark challenge of the National Day of Prayer now “has a prayer,” so to speak, after a federal ruling on March 1 that the Foundation’s lawsuit can go forward.
The suit contests the 1952 law, amended in 1988, designating the first Thursday in May as a National Day of Prayer and requiring an official U.S. presidential proclamation.
In ruling that the Foundation has legal standing to sue, U.S. District Judge Barbara Crabb said the plaintiffs have shown they’ve suffered “concrete injury” that can potentially be remedied by judicial action. “The primary injury plaintiffs allege is the feeling of unwelcomeness and exclusion they experience as nonreligious persons because of what they view as a message from the government that it favors Americans who pray,” Judge Crabb said in the opinion.
“That injury is intangible, but it is no less concrete than the injuries in the many cases in which courts have recognized the standing of persons subjected to unwelcome religious speech. The only difference between those cases and this one is that plaintiffs have not come into physical or visual contact with a religious display. However, that difference has little significance in a case like this one involving a national message intended to reach all Americans. Although plaintiffs do not have to ‘pass by’ the National Day of Prayer, they are confronted with the government’s message and affected by it just as strongly as someone who views a religious monument or sits through a ‘moment of silence,’ if not more so.”
When originally filed in October 2008, the suit named defendants as President George W. Bush; his press secretary, Dana Perino; Wisconsin Gov. Jim Doyle, one of 50 governors to also issue prayer proclamations; and Shirley Dobson, chair of the National Day of Prayer Task Force. The suit was later amended to include President Barack Obama after he took office and his press secretary, Robert Gibbs.
The Foundation seeks a declaration that the federal law violates the Establishment Clause of the First Amendment to the U.S. Constitution. “Mandated prayer proclamations by the president exhorting each citizen to pray constitute an unabashed endorsement of religion,” said the complaint, filed by Foundation attorney Richard Bolton of Boardman Law Firm in Madison, Wis., where the Foundation is headquartered.
“The court’s holding that the plaintiffs have standing to bring this action is very reassuring,” Bolton said. “Government officials have been fighting tenaciously in recent years to close the courthouse doors to Establishment Clause challenges, while at the same time the government’s support of religion has been increasing. We are very pleased, therefore, that this important matter will now be decided by the court on its merits.”
Judge Crabb noted in her opinion that “adopting [the] defendants’ view of standing would allow the government to have unrestrained authority to demean members of any religious group without legal consequence. The federal government could declare the ‘National Day of Anti-Semitism’ or even declare Christianity the official religion of the United States, but no one would have standing to sue because no one would have to ‘pass by’ those declarations.”
Judge Crabb said she agreed with the government that the prospect of declaratory or injunctive relief against a sitting president is “extraordinary” and raises significant separation-of-powers issues. “However, they are wrong to suggest that the president is immune from injunctive or declaratory relief.”
Judge Crabb dismissed the Foundation’s claim to challenge the constitutionality of prayer proclamations in general, but will decide the constitutionality of the National Day of Prayer statute, which requires the president to issue an annual prayer proclamation. Judge Crabb also denied standing to sue Shirley Dobson. The Foundation complaint took issue with her as the head of the National Day of Prayer Task Force, which has close ties with the evangelical Christian group Focus on the Family. She is married to Focus on the Family founder James Dobson, and the task force is located in Focus on the Family headquarters in Colorado Springs, Colo.
Bolton said that the court’s removal of Dobson as a defendant is not a significant setback. “The Foundation has never been opposed to nongovernment parties designating and participating in their own Day of Prayer activities. Here, however, government officials have too often adopted the religious perspective of Mrs. Dobson and the National Day of Prayer Task Force as the official public statement and position of the government.
“To the extent that Mrs. Dobson and the Task Force, operating from the Focus on the Family campus in Colorado Springs, concentrate on the private sphere, that is their prerogative. FFRF is concerned about the government’s respect for the separation of church and state, which the court intends to address,” Bolton said.
Said Foundation Co-President Annie Laurie Gaylor: “The National Day of Prayer was predicated on revisionist history — the lie that the Founders prayed at the Constitutional Convention.” The National Day of Prayer was the idea of evangelist Billy Graham.
“We’re delighted the Foundation has been given a chance to correct the historic record and debunk the myth that our constitution was predicated on a deity,” said Dan Barker, Foundation co-president.
“Our challenge is taken on behalf of millions of nonreligious Americans who are demeaned and excluded by annual exhortations by our president that all Americans should pray and believe in a god.”
