Attorney Richard L. Bolton (second from right) after his oral argument in Chicago on behalf of FFRF, pictured with FFRF staff attorney Rebecca Markert, legal clerk Stephanie Schmitt and staff attorney Patrick Elliott.
The 7th Circuit U.S. Court of Appeals heard oral arguments Dec. 2 on the Obama administration’s appeal of a U.S. District Court decision that the National Day of Prayer is unconstitutional.
U.S. District Judge Barbara Crabb decided in favor of the Freedom From Religion Foundation in its suit, filed in 2008, that the law designating the first Thursday in May as the National Day of Prayer and requiring a proclamation by the president violated the Establishment Clause of the First Amendment.
“The same law that prohibits the government from declaring a National Day of Prayer also prohibits it from declaring a National Day of Blasphemy,” Judge Crabb noted in her April 15, 2010 decision. “It is because the nature of prayer is so personal and can have such a powerful effect on a community that the government may not use its authority to try to influence any individual’s decision whether and when to pray.”
The Obama administration announced on April 22 that it would appeal Judge Crabb’s decision. Dozens of theocratic groups, plus more than half of state attorneys general, filed “friend of the court” briefs siding with the government. Eleven groups supporting state-church separation filed amicus briefs on behalf of the Foundation.
Litigation Attorney Richard L. Bolton argued the Foundation’s case in Chicago before a 7th Circuit panel consisting of Chief Judge Frank Easterbrook, a President Reagan ap- pointee who participated by telephone in the arg- uments, and Judges Daniel Manion and Ann Claire Williams, appointed respectively by Reagan and President Clinton. Lowell Sturgill, a Department of Justice attorney from Washington, D.C., represented the Obama administration.
Williams engaged in feisty repartee with Sturgill, who argued that the plaintiffs lack standing to sue and that there is nothing coercive about the prayer proclamation and statute. He told the panel that Judge Crabb erred in granting FFRF standing to challenge the law and the president’s enforcement of it.
Bolton noted that the U.S. Supreme Court has ruled in numerous cases, as did Judge Crabb in her decision, that the Establishment Clause does not require “sticks and stones” injury. The violation, Bolton said, stems from identifying “some people as insiders and others as outsiders” by proclaiming a day for prayer.
Bolton argued that constitutional protections against discrimination aren’t limited to religious groups. “The Establishment Clause protects nonbelievers — ‘infidels,’ the Supreme Court has said — nonbelievers, atheists, every bit as much as much as Jews and Muslims and Catholics and Protestants.”
Theocrats like Rev. Billy Graham mounted “a six-week crusade” in 1952 to get the law passed, Bolton told the court, explaining the Day of Prayer’s historical pedigree. “People who wanted to have an easier opportunity to promote religion concluded that it would be easier, number one, if you had the endorsement and support of the government, and number two, it would be a lot easier if we knew when it was going to be. And that’s why they went back to the well and changed it [in 1988] to have it be a particular day.”
Judge Crabb went to great lengths to explain in her decision, Bolton said, that government neutrality in religious matters is not meant to discourage people from worshipping as they please. “The problem here is that advocates for the National Day of Prayer are seeking to rely on the credibility of the government to further their own end,” Bolton said. “In a sense, what’s happening here, is that the government is being used in lieu of them having faith in their own message.” He argued that NDP advocates have engaged in a sort of “history as illusion.”
At least a quarter of the presidential proclamations have repeated the lie that America’s founders prayed at the convention adopting the secular Constitution. Many proclamations have invoked other myths, such as that George Washington knelt in prayer in the snow at Valley Forge, Pa.
Judge Williams asked Bolton to define the plaintiffs’ injury.
“The fact of the matter is that government speech matters,” he said, “and the premise of the advocates of the National Day of Prayer essentially is that government speech doesn’t matter, government speech that is mandated by Congress and implemented by the president. It is the reaction to the speech that is the recognized injury.”
Since 1989, the NDP Task Force, housed in Focus on the Family’s headquarters in Colorado Springs, Colo., has written presidential proclamations with a yearly theme and scripture verse. Presidents, governors and other public officials have often used the Task Force’s wording or themes. Its chairperson, Shirley Dobson, has spoken at eight White House prayer services on the National Day of Prayer. It organizes between 30,000 to 40,000 prayer gatherings across the country.
It’s very clear that, Bolton said, “The National Day of Prayer is perceived as a day in which the government is supporting and promoting religion.”
The Task Force already has announced its theme for the May 5, 2011, Day of Prayer: “A Mighty Fortress is Our God,” based on Psalm 91:2, which says, “I will say to the Lord, my refuge and my fortress, my God in whom I trust.”
A decision is expected by summer.