Freethought Today · Vol. 28 No. 4 May 2011

Published by the Freedom From Religion Foundation, Inc.

‘No law’ should mean no law

FFRF seeks rehearing on Day of Prayer ruling

A three-judge panel of the 7th Circuit U.S. Court of Appeals in Chicago ruled April 14 that the Freedom From Religion Foundation and its plaintiffs don’t have standing to continue their historic challenge of the National Day of Prayer. The 1952 congressional act declared a National Day of Prayer and requires the president to issue an annual proclamation exhorting citizens to pray.

FFRF is filing for a rehearing, an en banc review, by the entire 7th Circuit.

The three-judge panel overturned the strong April 2010 ruling by U.S. District Judge Barbara Crabb in favor of FFRF. Crabb enjoined President Obama from issuing a prayer proclamation last year, but stayed her order pending his appeal.

Crabb, in ruling the National Day of Prayer unconstitutional, had reasoned: “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.”

FFRF’s historic victory sent shockwaves around the nation last year. Foundation Co-President Annie Laurie Gaylor said the appeals court panel had to throw the case out on standing, because had it ruled on the merits, FFRF would win.

“Our challenge is so strong, our claim is so correct,” Gaylor said. “The First Amendment says, ‘Congress shall make no law respecting an establishment of religion,’ and Congress made such a law when it enacted an annual National Day of Prayer. ‘No law’ should mean no law!”

The 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,” was adopted by Congress at the behest of Rev. Billy Graham. Giving a sermon on the capitol steps, Graham said, “What a thrilling, glorious thing it would be to see the leaders of our country today kneeling before Almighty God in prayer.” Graham added that such a law was needed, because “We have dropped our pilot, the Lord Jesus Christ.”

The floating National Day of Prayer was modified at the request of Christian evangelicals in 1988, and now takes place every first Thursday in May. The NDP Task Force, housed at Focus on the Family, issues an annual scriptural theme and prayer verse, and lobbies the president, all the governors and many other officials to issue proclamations, also organizing tens of thousands of local and regional events on government property, events that are hostile to nonevangelical Christians.

“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 us what to pray about,” said Gaylor.

She and Dan Barker, who co-direct FFRF, are two of six original FFRF officers and board members who are individual plaintiffs in the historic lawsuit. Other plaintiffs are Anne Nicol Gaylor, FFRF president emerita; FFRF Secretary Phyllis Rose; and Board Members Jill Dean and Paul Gaylor, who died after the appeals court decision.

“The 7th Circuit’s decision would seemingly allow Congress to declare a national religion as long as no one is forced to participate directly in the religion’s practices,” Barker said.

“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 were 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 7th 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, the courts are saying outright governmental endorsement of religion is of no concern,” Bolton added.

FFRF is also challenging the NDP at the gubernatorial level in Colorado, and in a federal lawsuit filed last month is seeking an injunction ordering Arizona Gov. Jan Brewer not to issue the Arizona Day of Prayer on the first Thursday in May.

NDP ‘standing’ decision critiqued

The three-judge panel threw out FFRF’s challenge on the issue of standing. Judge Frank Easterbrook, writing for panel, said the plaintiffs had not had to alter their conduct and hadn’t incurred any cost in time or money. (In fact, FFRF entered into the court record the substantial efforts, time, press releases, letter campaigns to mayors and governors over the past 30 years.) Easterbrook said “a feeling of alienation cannot suffice as injury in fact.”

Patrick Elliott, one of FFRF’s two staff attorneys, said, “The standing requirement is not intended to be a tool that judges can use to close the courthouse door to valid Establishment Clause challenges. The purpose of the standing inquiry in these cases is to ensure that the proper plaintiff has challenged the alleged unconstitutional law or conduct. The requirement that a plaintiff suffer ‘injury in fact’ assures that the plaintiff has been injured in a personal and individual way.”

Rebecca Markert, FFRF senior staff attorney, said, “Judge Easterbrook’s opinion suggests that plaintiffs can only have standing if they have been coerced into religious practices. This contradicts decades of Establishment Clause jurisprudence, including strong precedent from the 7th Circuit.

“His ruling raises serious concerns about if and when anyone can bring a challenge under the Establishment Clause — from prayer in school or at government meetings to nativity scenes and other religious displays on government property.”

Elliott pointed out that Judge Ann Claire Williams, while concurring, took Easterbrook to task for his incorrect standing analysis. Williams noted that under 7th Circuit precedent, coercion is not required to prove a state-church violation, nor that plaintiffs needed to have altered their behavior.

Williams wrote, “The rule in every other circuit that has considered the question is that while an allegation of a change in behavior is sufficient to confer standing, it is not required.”

“It would appear to us,” said FFRF Co-President Annie Laurie Gaylor, “that the 7th Circuit is saying freedom of conscience under the First Amendment would only be abridged if citizens were marched into a church at gunpoint by government officials!”

Judge Crabb held that the plaintiffs felt excluded and believed that the National Day of Prayer sent a message to them that some citizens are better because they pray and that they are “un-American” because they do not pray. She wrote: “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. 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.”

Elliott said, “Picture this: Congress passes a law requiring the president to declare every year that the United States will have an established religion and that it will be Roman Catholicism. Who can challenge this? Nobody. What meaning can the First Amendment have if citizens are not able to enforce it?”

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